Debates of Nov. 20th, 2007

(Return tabled)

Question No. 55

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

With respect to the 2007 Canadian Wheat Board barley plebiscite: (a) how much money has the government spent on its campaign for "marketing choice", from all federal sources since January 26, 2006, in relation to (i) advertising in daily and weekly newspapers, (ii) radio advertisements, (iii) roundtables, (iv) the Task Force on Marketing Choice; (b) how many meetings have taken place since the 2006 federal election between representatives of Western Canadian Wheat Growers Association and other agri-business corporations and government officials where “marketing choice” and the Canadian Wheat Board was a topic of discussion and (i) on what dates did these meetings take place, (ii) who presided over these meetings, (iii) who was present at these meetings; (c) which marketing, advertising, consulting and professional or independent agencies did the government consult with respect to how to frame the ballot questions for the barley plebiscite; (d) did any of these marketing, advertising, consulting and professional or independent agencies provide the government with written reports on how to frame the ballot questions for the barley plebiscite and, if so, on what dates were they provided; (e) what verbal or written instructions were given to KPMG, the accounting firm hired by the government to conduct the barley plebiscite, regarding the administration processes to be employed for any aspect of the barley plebiscite that KPMG was to be responsible for; (f) what is the government's position in regard to the use of numbered and traceable ballots in official election or plebiscite processes and in what way does this position justify using numbered and traceable ballots in the barley plebiscite; (g) at any time throughout the barley plebiscite, was the government informed or aware (i) that KPMG was contacting households by telephone seeking authorization to destroy certain ballots that had been submitted by the household which KPMG did not deem the household entitled to, (ii) that in some cases KPMG did not actually speak to the person attached to the ballot in question and accepted authorization from other household members, (iii) if the government was informed or aware of these practices, did it take measures to investigate or put a halt to these alleged informal practices and on what dates and in what form were these measures taken; (h) what is the government's position in regard to the informal destruction of ballots in plebiscites without the formal consent or presence of the person attached to a particular ballot; (i) was the government aware that many farmers thought that question 2 on the barley plebiscite ballot was to maintain the status quo and as a result voted for that option; (j) how many meetings were held with grassroots farm organizations to discuss any aspect of marketing choice and the barley plebiscite, on what dates were these meetings held, and who was present at these meetings; (k) what is the government's position in regard to whether a clear majority for victory in an election or plebiscite process should be announced by the government before, during or after that process begins and in what way does this position justify the government's refusal to announce the terms of a clear majority for victory until after the Canadian Wheat Board barley plebiscite ballots were counted; and (l) has the government ever met with the Canadian Wheat Board to determine how to limit commercial harm to farmers and the barley industry from the government’s proposed regulatory changes with respect to implementing “marketing choice” for barley and, if so, who was present and on what dates did these meetings occur?

(Return tabled)

Questions Passed as Orders for Returns

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Finally, Mr. Speaker, I ask that all remaining questions be allowed to stand.

[The Speaker, Liberal, Peter Milliken]

Is that agreed?

[Some hon. members]

Agreed.

Afghanistan

[Louise Thibault, Independent, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I rise on a point of order.

I seek the unanimous consent of the House to honour the memory of the soldiers who fell in battle recently, by observing a moment of silence at 3 p.m., following question period.

[The Deputy Speaker, NDP, Bill Blaikie]

The House has heard the request of the hon. member that there be one minute of silence after question period today with respect to the deaths of soldiers in Afghanistan. Is there unanimous consent?

[Some hon. members]

Agreed.

The House resumed from November 19 consideration of the motion that Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, be read the second time and referred to a committee.

Immigration and Refugee Protection Act

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, before I begin my remarks I first would like to mention that I will be splitting my time with my hon. colleague, the member for Don Valley East.

I am pleased to join my colleagues in the House in discussing a very important piece of legislation that has been brought before us for our consideration.

Most people, on hearing the name of Bill C-3, An Act to amend the Immigration and Refugee Protection Act, may think it deals with immigration policy, but in many respects this is a security bill. This proposed law of course deals with security certificates and, in particular, the issues that arise out of the February 23, 2007 Supreme Court of Canada decision.

The reality is, as has been stated a number of times by various members, that if new legislation is not passed by this House to address concerns raised in the February 2007 Supreme Court decision, then the security certificate process will effectively terminate, so this is indeed an important debate.

The security certificate process itself has been in existence for approximately 20 years. In fact, a variation can be found as far back as the 1960s, when it was utilized to remove from Canada an organized crime figure.

Since 1991 we have seen in this country the use of security certificates 28 times. Since 2001, a pivotal mark, of course, in the history of anti-terror initiatives, the Canadian government has issued six security certificates. The system most notably has been amended twice, once in 1991 and again in 2001.

The whole security certificate system does represent a contentious process that has over the years created as many critics, it seems, as supporters. Among those that have opposed the system are the Canadian Bar Association, Amnesty International and Human Rights Watch.

Internationally, Canada also has come under criticism for its security certificate system from the United Nations Committee Against Torture, the United Nations Working Group on Arbitrary Detention and the United Nations Human Rights Committee.

Notable Canadians such as former solicitor general Warren Allmand and former foreign affairs minister Flora MacDonald have also expressed opposition to the security certificate system.

At the same time, there has been support for the system both from Canadians at large and from successive Canadian governments that identified the security certificate system as an important and indispensable tool to deal with individuals who represent terror, crime or human rights threats to Canada.

It should be noted that an earlier court challenge to the security certificate system resulted in the December 10, 2004 decision by the Federal Court of Appeal that found the process constitutional. This, of course, remained the prevailing judicial ruling until June 2006, when arguments were made with respect to two individuals being held on security certificates.

The result of these June 2006 arguments before the Supreme Court of Canada was the judicial decision of February 23, 2007, which immediately changed some provisions of the security certificate system and required the government to amend the law within one year, that is, the court issued a suspended ruling with effect by February 2008.

Among the court's rulings with immediate effect was the decision to strike and effectively replace the provision that distinguished between refugee claimants or non-residents and those with permanent resident status.

The suspended ruling dealt with, of course, the fairness of the exclusionary provisions with regard to evidence being used to sustain the security certificate. This part of the Supreme Court of Canada ruling goes to the heart of the issues that the government has indicated it is trying to address with Bill C-3, which we are debating today.

We all know that the court essentially ruled that the absolute inaccessible nature of the evidence used to hold a person on a security certificate was inconsistent with sections 7, 9 and 10 of the Charter of Rights and Freedoms. The ruling is of significant consequence to Canadians.

The Charter of Rights and Freedoms represents for Canadians not only a document, but rather a depository of our national values and our traditions of freedom. When our highest court finds provisions of a law are incompatible with the charter, we are called to take note.

Essentially, Bill C-3 is designed to address the issue of secrecy with respect to evidence. The Supreme Court, in simple terms, found the total secrecy and inaccessibility of evidence used to hold a person under a security certificate to be egregious and in need of redress.

The bill, by creating the so-called advocate, has, as its purpose, the redress of the Supreme Court's concerns.

Under Bill C-3, the justice minister would create a list of advocates. These would be lawyers, as we understand it, with at least five years of relevant experience, have no conflict of interest and in possession of the appropriate security clearance. These advocates would have an opportunity to meet with their clients prior to reviewing the evidence using only the court summary that is not considered sensitive. Then they will have access to the evidence. Once this has taken place, they cannot reveal to their clients the contents of the evidence. They can make a judicial appeal based on their viewing of the evidence with respect to the contents but they cannot reveal its contents to their clients. This is, of course, a major departure from the traditional view of lawyer-client privilege.

The reality is that there remains a secrecy aspect of this process that still seems to challenge most conventional views of judicial fairness.

However, we need to remember that these situations are unique and rare. They apply only to non-Canadian citizens and there is judicial recourse, albeit limited in comparison to standard legal practices with which we are generally accustomed as citizens.

As a country, we are not alone in these challenges. The United Kingdom has undergone similar debates and challenges. In 2004, the House of Lords, or law lords, ruled against the system in place there that allowed for unlimited detention. The result, after much debate and angst within the political arena, was a significantly modified and much more limited system of non-traditional detention for potential terror and human rights suspects.

The question for us today as parliamentarians is not unlike that which has faced legislators in the United Kingdom and other traditional western democracies. What is the proper balance between fundamental human rights protections and the need to protect the state and its citizens from persons of risk and, in particular, non-citizens who seek to take up residence in Canada?

This is a fundamental question, a question that we will need to consider carefully over the next short period of time leading up to our vote on this matter.

We must tread carefully when we venture into the realm where fundamental legal rights need to be compromised or withheld. We must exercise caution when we make decisions that afford to our security services and the court's secrecy that we would normally consider inconsistent with the principles of our democracy and our judicial system.

However, over the coming days we as legislators will determine and finally vote upon the bill that is before us today.

Does the need for security of our state and of Canadians require the measures we are bringing forward into law? This is a question we will reflect upon as we prepare to vote on Bill C-3.

The world has changed. There are threats that would once have seemed inconceivable to us that now present themselves as real. Is Bill C-3 justified? Does the need for this kind of law outweigh the concerns?

I know all members of the House will ask, as I will, these important questions as they cast their vote in the very near future. Canadians expect no less than this from us and we must serve them well in this regard.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, the security certificate provisions of the immigration act allow for the deportation of people who are alleged to have participated in very serious criminal activity in Canada, activity related to terrorism, to plotting against the national security of Canada, to espionage and to organized crime. It allows for their deportation without them ever having been charged or convicted of those very serious crimes. Here we are removing people from Canada who are alleged to have committed very serious criminal violations but have never been charged, convicted or punished for those crimes.

I wonder if the member believes that it is appropriate to remove people from Canada without holding them accountable for serious criminal activity, like terrorism or threats to national security, and then sending them to their home country or to another jurisdiction without them ever having been charged, convicted and punished for those serious criminal matters.

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, I commend my hon. colleague for his work on human rights because I know he deeply cares about human rights.

Part of what I was trying to state in this debate is that I have serious concerns, as do many people who are involved in human rights. Many organizations, from Amnesty International to others, have raised concerns and alarm bells. We want to ensure that whatever legislation we bring forward is charter compliant. We heard from the Supreme Court that there were issues of concern in the legislation that was brought before this House in years past.

One positive thing I have seen come forward from this is the role of the special advocate. It is something that the United Kingdom also has in place, and I see it as a very favourable thing.

However, I must say that there are still some concerns with this legislation but, at the same time, I think it warrants going before the committee to at least have a discussion there so we can hear from the different witnesses who come forward, specific groups that are involved in human rights, and then let us make our decision when it comes before this House at third reading.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, I understand that former legislation was struck down by the Supreme Court. If the security certificates process violates civil rights and undermines core values of our justice system, how does the bill in front of us actually deal with that aspect? Where is the accountability?

If someone is alleged to have committed serious crimes, should we not charge him or her? Is deportation not just a way of saying that this is out of sight, out of mind, it is not Canada's problem and let us just get rid of it?

That is not the most accountable way to go forward. How does this bill in front of us deal with the whole process of the justice system? Do we know whether passing this would survive the Supreme Court?

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, whether it will meet the test of the courts, specifically the Supreme Court, we still do not know. We need to have that type of information before the committee and this House.

The great thing about our parliamentary system is that we do not adopt laws in one day. It is a slow process and I know the process frustrates some people but there are some beneficial aspects that come out of it. One of them is that we can look at legislation, speak to the different stakeholders out there, the different community groups that have issues of concern, and the legal experts and then make the decisions and, if necessary, amendments at the committee. At the committee stage we have the ability to hear witnesses, make proper amendments and then come before this House for a third vote.

We also have a situation where we have a second chamber in this House. The Senate also plays a major role in terms of looking at legislation and seeing whether it is charter compliant.

[The Deputy Speaker, NDP, Bill Blaikie]

Before resuming debate, I wish to inform the House that because of the ministerial statement, government orders will be extended by 11 minutes.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Speaker, I am pleased to speak to Bill C-3, An Act to amend the Immigration and Refugee Protection Act, a bill, which, as my esteemed colleague has said, deals with issues around the security certificate.

As has been mentioned, security certificates do pose a challenge in terms of human rights. The Supreme Court of Canada ruled unanimously on February 23, 2007, that the process of determining the reasonableness of security certificates violated section 7 of the Charter of Rights and Freedoms.

The Supreme Court was very clear. The government does require a mechanism to remove individuals from Canada who pose a threat to national security. However, the system must be reformed and the court had particular concerns with respect to the secrecy of the judicial review system, which prevents individuals from knowing the case against them and, hence, impairs their ability to effectively challenge the government's case.

The Supreme Court agreed that the protection of Canada's national security and related intelligence sources does constitute a pressing and substantial objective, but it is also found that the non-disclosure of evidence at certificate hearings is a significant infringement on the rights of the accused.

In other words, the government must choose a less intrusive alternative, notably the use of special counsel to act on behalf of the named persons, while protecting Canada's national security. The Supreme Court gave Parliament one year to allow Parliament the opportunity to design a legislative remedy that protects Canadians and respects basic charter rights.

Bill C-3 would amend the Immigration and Refugee Protection Act to create a special role, the role of a special advocate. The purpose of the special advocate is to protect a person's interest in proceeding where evidence is heard in absence of the public and of the person or their counsel. This should provide better representation to the person who is detained.

We would like to see the bill be sent to committee as we want to ensure that the role of the special advocate has powers, that it is not just a puppet. Hence, the bill, with its various changes, needs to be sent through for a thorough review.

The bill proposes some changes that are positive. For example, when people are detained under a security certificate, the bill proposes that the people detained must have their detention reviewed by a judge of the Federal Court within 48 hours of the detention beginning. Any person still detained six months after the conclusion of the first review may apply for another review of the reasons for his or her continued detention.

Currently, we have five Muslim men who are subjected to security certificates in Canada. Only one man, Hassan Almrei, , remains at the Kingston Immigration Holding Centre, which has been nicknamed by critics as Guantanamo north.

Mohamed Harkat, Mohammad Mahjoub, and Mahmoud Jaballah have all been released from prison but are under strict house arrest provision, as is Adil Charkaoui who successfully challenged the previous laws as unconstitutional.

The immigration security certificate procedure still allows suspected terrorists, as well as refugees and landed immigrants accused of human rights violation or serious criminality, to be detained and deported from Canada. However, many deportations have been delayed over claims that their lives will be endangered should they return to their country of origin.

Critics of the security certificate process have slammed the current bill saying that it changes little and will likely be back before the Supreme Court before long. Matthew Behrens, the coordinator of the campaign to stop secret trials in Canada, says that the legislation would continue to leave the accused in the dark. He said that it would also allow evidence to be heard that would be considered inadmissible in a court case against a Canadian citizen.

The bill has also faced criticism from the Canadian Council for Refugees, the International Civil Liberties Monitoring Group and the Canadian Arab Federation.

The bill which is before us is similar to current laws in Britain where special advocates attend closed door hearings. The British system has drawn complaints for the special advocates' lack of necessary cooperation and information from intelligence agencies to be effective.

These are some of the concerns and therefore, it is important that the bill be sent to committee for further review before we make any decisions.

The Supreme Court laid out several options it would consider appropriate. Both the House committee and the Senate committee, in reviewing the previous anti-terrorism act, spent considerable time on this very issue and provided very clear recommendations on how to address the void left by the court's decision.

We welcome the decision of the Supreme Court on security certificates and praise the wisdom of the court in providing Parliament with a year to address the issue. We need to ensure that this bill, when it is presented before Parliament, has the right tools, meets the Supreme Court challenges, and the committee will do its due diligence in ensuring that the security certificates do not violate the human rights of Canadian citizens and are mindful of issues.

We live in a world where global terrorism can come to our doors in no time. It is important to protect the security of Canadians; however, we need to ensure that we are in line with the Geneva convention on human rights.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, the way I look at this there is no doubt that anyone who plots a terrorist attack in Canada should be tried, convicted and punished, not simply deported to another country though.

Terrorism, espionage and organized crime are serious matters that should be dealt with under the Criminal Code, not the Immigration and Refugee Protection Act.

Security certificates are the wrong way to deal with the threats to our national security. The security certificates process violates civil rights and undermines core values of our justice system. That is why they were struck down by the Supreme Court in the first place.

Security certificates will not make Canadians any safer. That is why we are going to be opposing this legislation. I would ask my colleague across the way, are there not two major problems with the security certificates? First of all, it seems to me that they do not punish those people who are plotting terrorist acts. Security certificates allow for the detention and deportation of those suspected of terrorist activities, but they do not ensure suspected terrorists are charged, prosecuted or jailed for their crimes.

My second question is whether the aspects of the security certificate process, like detention without charge and the inability of the accused to know or examine evidence against them, do not undermine our justice system and our civil liberties.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Speaker, I thank the hon. member for her concerns.

The current bill that is being proposed needs to go before committee. It has the role of a special advocate. The special advocate's job is to ensure that he or she is present and that the person who is accused of terrorism or crimes against the country is not left in the dark, that there is a special advocate available to listen and to ensure that that protection takes place.

That is why we are insisting that this bill go to committee. The committee has do its due diligence in ensuring that the recommendations of the Supreme Court are met. The committee must do a thorough analysis.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I want to put a question to the hon. member about the special advocate process, because unfortunately, I tend to believe that the provisions for a special advocate that have been introduced in Bill C-3 amount to tinkering with a very fundamentally flawed bill.

Certainly the provisions that we do have in the legislation seem to be modelled on the system in Britain. In the United Kingdom a number of special advocates have withdrawn from that process because they believe that it was too significant a compromise to the principles of basic fairness in the criminal justice system there. In fact, just recently the joint human rights committee of the British parliament said that the special advocate process was Kafkaesque and amounted to a star chamber. Those are very serious criticisms of that system.

A former special advocate, Ian Macdonald, said that what he was doing as a special advocate was adding a fig leaf of respectability to a very odious process and he resigned because of that.

Given those very significant criticisms of the special advocate process that the government seems to have adopted in this legislation, why would anyone want to support a bad bill, a fundamentally flawed process that compromises basic human rights and compromises our justice system in Canada?

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Speaker, I am aware of the special advocate's resigning. That is why I insisted that we send the bill to committee. It is important that the committee review the role of the special advocate, and whether enough money and resources are being given to the special advocate.

Other areas in the bill provide that a person detained under the security certificate must have his or her detention reviewed by a judge of the Federal Court within 48 hours. The bill permits a challenge to the Federal Court of the reasonableness of a security certificate.

Yes, the bill is flawed, but it is important to get the bill to committee so that the committee members can do due diligence and review it thoroughly.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Mr. Speaker, I am pleased to rise today to speak to Bill C-3, the legislative framework proposed by the Conservative government in response to the recent ruling by the Supreme Court concerning security certificates, which are used to remove people who, in the eyes of the government, present a threat to Canada or Canadians.

At present, two ministers give authorization to issue such a certificate: the Minister of Public Safety and the Minister of Citizenship and Immigration. The current security certificates procedure is set out in the Immigration and Refugee Protection Act passed in 2001. It provides that the ministers of Citizenship and Immigration and Public Safety and Emergency Preparedness can sign a security certificate attesting that a permanent resident or foreign national—and not a citizen—is inadmissible to Canada for security reasons.

Once the security certificate is signed, it goes to the Federal Court. When the court deems that the disclosure of certain evidence or testimony would be injurious to national security or the safety of any person, it holds in camera hearings without the accused’s lawyer and the accused. This procedure makes it impossible to cross-examine witnesses heard behind closed doors or to verify the reliability and truthfulness of the evidence.

The judge gives the accused a summary of the information or evidence the judge examined in the accused's absence. The accused can be heard at a hearing. If the Federal Court judge deems the certificate reasonable, it automatically becomes a removal order, and the accused cannot appeal this decision. However, in January 2002, in the Suresh case, the Supreme Court held that, barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice.

On February 23, 2007, in the decision in Charkaoui v. Canada (Citizenship and Immigration), the Supreme Court unanimously held that the security certificate procedure violated the Canadian Charter of Rights and Freedoms. Specifically, certificates violate section 7 of the charter, which reads as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice.

Because people named in certificates are deprived of their liberty yet are not entitled to a full defence, the security certificate process is unconstitutional. On the unlimited nature of the measures, the Supreme Court added:

The principles of fundamental justice and the guarantee of freedom from cruel and unusual treatment require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case.

Security certificates have been part of Canadian legislation since 1978 and have been used on a number of occasions. A total of 27 certificates have been issued to date, five of them since the attacks of September 11, 2001, if memory serves. The certificates issued in recent years in connection with the threats of terrorist attacks have generated interest among many legal experts in the mechanism for assessing and examining the risk an individual poses to society.

The review of the judicial process that is initiated after a security certificate has been signed gave rise to some points of contention, which led the government to revisit several elements of the certificates. Unlimited detention, when there is the risk of torture upon deportation, was sharply criticized by all parties. The Kingston Immigration Holding Centre, where individuals were being held, was referred to as Guantanamo North. The ministers responsible for authorizing the certificates have often stated, to defend their position, that the individuals were being held in a “three-walled prison”, insinuating that they were free to leave the country at any time should they wish to do so.

The Standing Committee on Citizenship and Immigration inspected the detention conditions of individuals held at the Kingston Immigration Holding Centre. My colleague for Burnaby—Douglas also attended these meetings. We presented our recommendations and observations to the government. The majority of individuals detained have since been released under very strict conditions.

There is another problem with the current conditions. These make life just as difficult for the friends and family of these individuals because their lives are now governed by conditions that require them to obtain a multitude of authorizations from the court.

Each one of these individuals has been forced to wear an electronic bracelet so they may be tracked at all times. Recently, Mr. Charkaoui was prevented from travelling to Quebec where young members of Amnesty International were waiting for him. Mr. Harkat must ask the court's permission just to have relatives visit and dine with him.

The court ruling states that he must be accompanied at all times by a person duly identified by the court which, in my opinion, interferes with the freedom of other individuals who can no longer live a normal life because they must fulfill the conditions at all times.

Many people have asked us why we do not sentence them if we have proof that they present a threat to security and the government has enough evidence to incriminate them. They should be brought before the courts and be given a fair trial.

Bill C-3 incorporates some Bloc Québécois proposals in part or in their entirety. Among other things, we asked that there be a special advocate and the right to appeal. As far as detention is concerned, we asked for a review of indefinite detention, that a mechanism be implemented to review its relevance. We also asked that this detention be reviewed so that at a given point, a person can be released. This will prevent keeping the person detained without evidence and allow that person to be properly charged in our courts.

Nonetheless, there is nothing in the bill on other issues such as warrants to arrest a person, a foreign national, on the burden of proof required and on evidentiary evidence that may or may not have been obtained through torture.

The government never gave us an answer on the reasonable duration of detention. How long will these detention conditions be imposed?

Where will fear of the threat of sleeper terrorist cells that the government is talking about take us? When people conspire to commit criminal acts, we usually charge them and bring them before our courts.

I would like to remind hon. members that some of the people subject to security certificates have been living in these conditions for more than eight years.

We are not the only ones who are uneasy about the current process. Judges are as well.

Justice Hugessen was cited a great deal. I will read an excerpt from one of his statements.

I can tell you because we [the judges of the Federal Court] talked about it, we hate it. We do not like this process of having to sit alone hearing only one party and looking at the materials produced by only one party and having to try to figure out for ourselves what is wrong with the case that is being presented before us and having to try for ourselves to see how the witnesses that appear before us ought to be cross-examined. If there is one thing that I learned in my practice at the Bar... it is that good cross-examination requires really careful preparation and a good knowledge of your case. And by definition judges do not have that... We do not have any knowledge except what is given to us and when it is given to us by only one party we are not well-suited to test the materials that are put before us.

The government has tabled measures that partially respond to this uneasiness of judges. My colleague from Marc-Aurèle-Fortin explained this aspect very well.

The bill still gives judges far too much discretion and does not respond to Mr. Hugessen's concerns.

A number of legal experts felt that the government should have taken the opportunity to conduct an in-depth review of the security certificate procedure, taking into account the experience of special advocates in other countries such as Australia, New Zealand and England.

Furthermore, a study on security certificates commissioned by the Canadian Center of Intelligence and Security Studies, with financial support from the Courts Administration Service, explained the weaknesses of the systems used in Canada and elsewhere in the world.

The Standing Committee on Citizenship and Immigration heard from Mr. Ian MacDonald, who, in 1998, was appointed special advocate to the Immigration Appeals Commission by the attorney general of the United Kingdom.

He was also assigned to deal with national security cases before and after the terrorist attacks of September 11, 2001. He publicly resigned in 2004 in protest against the indefinite detention powers without trial imposed by the British Anti-Terrorism Crime and Security Act 2001, and has since acted in control order appeals. He represents immigration clients at the European Court of Justice.

Mr. MacDonald explained why he resigned and the downsides of using special advocates. I think that the Standing Committee on Public Safety and National Security could benefit from Mr. MacDonald's comments and expertise. Furthermore, the University of Ottawa has carried out a number of studies on security certificates and the use of special advocates in the process.

With regard to the bill that is before us, I have the impression that the government has tried to do the minimum necessary to comply with the court's ruling. We have examined the bill and will make some amendments to it to address certain concerns about the security certificate procedure. However, for the time being, I believe that the government has taken a risk in doing the bare minimum. The process could have been reviewed in depth, and the government had a golden opportunity to do so.

If the House decides that this bill should be studied in committee, the Standing Committee on Public Safety and National Security will be able to make these amendments, and the Bloc Québécois will also put forward some amendments. For example, the Bloc Québécois will propose an amendment that allows counsel defending the interests of an individual facing deportation to see his client again in order to obtain additional information, once the evidence has been disclosed. Experience with the CSIS complaints process has shown that it is possible to work this way.

We would like to see the right to appeal the Federal Court decision and an end to indefinite incarceration and arrests without warrant of foreign nationals. We would also like to change the burden of proof so that certificates are upheld only if the court is convinced beyond a reasonable doubt that the individual represents a threat. We also want the bill to prevent the deportation of an individual to a country where he could face torture.

We have long denounced the security certificate mechanism. The government's position, the procedure it is proposing, has been widely criticized. Consequently, we would like a number of aspects of this bill to be corrected, and we will have the opportunity to do so in committee.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, our Charter of Rights is meant to protect everyone in Canada. Right now we have two classes of people. The first class is Canadian citizens, who are protected. The other class is landed immigrants, who are not protected by the charter. Under the security certificates rules, it means people can be charged without knowing what the charges are against them and without knowing what the evidence is. There are secret hearings and no right to appeal. That is surely against the charter.

I do not understand why the former Liberal government introduced this process in the first place, in the nineties. With the bill in front of us, we now would have the advocate system that would not make a big difference. It has failed in the United Kingdom and other places.

What assurance do we have, if we pass the bill in the House and send it to committee, that we can improve the bill, which is so fundamentally flawed, in the various committee meetings and hearings?

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Mr. Speaker, I must agree in principle with some of the statements made by my NDP colleague. However, on this side of the House, we have done some work. We have also consulted legal experts, who have made proposals that seem reasonable to us.

When this bill is studied in committee, we will have an opportunity to debate the amendments that need to be made to the bill so that it complies with certain provisions of the charter and certain points raised by the Supreme Court.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, we are debating a bill that is intended to amend the Immigration and Refugee Protection Act for the purpose of making it more charter compliant. In fact, the government did not just dream this up. The bill has come to us as a direct result of a decision of the Supreme Court of Canada in the Charkaoui case, wherein the court identified a weakness in procedural fairness.

I think it is fair to say that many people had identified this potential problem over the years. It was never clear to all of us that the procedure which then existed would fall so short of charter compliance standards that we had to fix it. The problem was identified some years ago, and this bill attempts to make a repair, a fix, to the section in the Immigration and Refugee Protection Act to better protect those who are subject to the procedure.

I want to say a few words about the role of the Supreme Court in bringing about these kinds of changes.

This is not the first time Parliament has been asked, invited or told by the Supreme Court of Canada to do some additional homework to repair our legislation. I can recall a situation that developed about 10 years ago. It was the Feeney case, which was in front of the criminal courts. The case had to do with the ability of a police officer or peace officer to pursue an individual who was suspected of a crime. It is essentially a scenario involving hot pursuit, where the individual is seen committing the crime and then followed until the officer is able to arrest the individual and bring him or her in for either questioning or charging.

In the Feeney case, the police officer, in pursuing the individual, followed him to his residence. The individual entered his private residence and at some point the police officers followed and went in. The question that came up was whether a police officer could invade the privacy of a private residence without a warrant.

Up until then, our laws and our court jurisprudence had accepted that in a scenario of hot pursuit, a police officer could follow and enter into a private residence. In the Feeney case, the Supreme Court found that under the charter the police could not go into a private residence in that circumstance, and that the law needed repair.

I want to go through this carefully because I think this case and others are developing a kind of a protocol and jurisprudence, a kind of a dialogue with the Supreme Court, one that is necessary. It took us a long time to get here.

When the Supreme Court makes a charter interpretation of the law and it finds something non-compliant with the charter, it has the ability to strike it down immediately, or to strike it down after a certain period of time, or to read in a change to effectively legislate. The court can say that it will add these words in the statute, just like Parliament should have legislated them in the first place.

It does not do that very often. It does not read in very often and it perhaps does so reluctantly. In this particular case, in the Charkaoui case, that brings us this legislation, it did not read in. It gave Parliament time to repair.

In the Feeney case about 10 years ago, it struck down and gave Parliament six months to fix it. At the time it made the ruling Parliament was going into a general election. In my view at the time I thought that was pretty dumb of the Supreme Court. I am saying this with some respect. Looking back I have the benefit of 20:20 hindsight of course, but at the time the Supreme Court of Canada gave Parliament only six months to fix a piece of criminal law legislation when we were going into a general election, which would necessarily involve a break of several months. This did not give Parliament enough time.

At some point the bright lights turned on and the Department of Justice went back to the court and obtained a further extension. That was reasonable. The court was not unhappy with that. The point at the time was that this business of the court disallowing and giving Parliament three months or six months had to be done with a working knowledge of how Parliament worked. The government itself does not have the power to legislate. The government must bring the matter to Parliament and Parliament, through both Houses, makes the changes.

I was very unhappy about the Feeney situation that developed with Parliament. It has however allowed the development of a dialogue between the courts and Parliament. In this case the court gave Parliament a year and that should be enough time. In this case, if the House passes the legislation, it can deliver on what the court hoped we might deliver on. The court is doing its job. I do not criticize the courts for interpreting the law on behalf of citizens.

In this particular case the law does not invent or reinvent security certificates. It revises the procedure that is used in relation to security certificates. I know that there are those in the country who question the need for security certificates under the Immigration and Refugee Protection Act.

I have always accepted and they have been in the law here for some time, that our government, the people representing the people of Canada under the Immigration Act, need the ability to remove people from Canada. We do it all the time.

Every week there are dozens of people being removed from Canada as illegal immigrants. These are people who do not have status here, people who should not be here. They are removed simply because they do not comply with the Immigration Act or maybe they have serious criminal records.

The reasons for removal are all set out in the statute. To my way of thinking, the security certificate provisions are simply a refined component of immigration deportation procedures. It is not a special thing developed to remove whomever the government thinks it might want to remove. In fact, if I can take that other perspective, it is simply a deportation procedure on a faster track with one important difference.

The person involved has been found by the government, not simply an official in the government, not an immigration officer or not a bunch of immigration officers, and not the Canada Border Services Agency but two ministers of the Government of Canada and effectively the cabinet, to be a danger under national security and under security definitions, and must be removed.

We must always remember that we are not dealing with Canadians. We are dealing with non-Canadians. The security certificate provisions do not involve Canadians, only non-Canadians. The non-Canadian category includes people with no status and people who have permanent resident status but are not citizens.

I have always maintained that government needs the authority to remove people because we deport people all the time. There are perhaps two reasons why the security certificate procedure has been designed specifically for security reasons.

First, the circumstances involving security may or may not be quite pressing. As history has evolved, it would appear that the circumstances lying behind security certificates, in most of the cases they have been used, are not that pressing. The procedure has not been used all that often, a dozen or two times over the years perhaps. It is not like the person is a terrorist and about to push the button. The certificates have involved individuals who comply with the security concern definitions.

The other reason for a specific procedure is that in dealing with security matters some or most of the information that will be brought forward to describe the security concern will be information that is protected, secret, confidential, classified, or whatever we want to call it. In most circumstances, it would be neither appropriate nor wise, nor allowable to present that information in an open court or public forum.

We have classified that information because it involves security matters outside the country and has been received on a secret, classified basis, and analyzed and presented. There needs to be a procedure to protect that information for the same reason we protect all classified security information. We do that routinely as a country.

We protect our classified information right through the entire range of government. If we are using classified security information in relation to an individual subjected to these procedures, then we need a special procedure that will do that. That is one of the reasons why we use the security certificate procedure.

I will just offer a hypothetical example, one that is not too bizarre. I will refer to the mythical Carlos the Jackal, who I understand is now deceased. Imagine that person had been found living in Moose Jaw under an alias and we wanted to remove him from this country, but he had not committed any offences in Canada. Would he have been a simple deportee? Would we invite him for a hearing in front of an immigration officer and then tell him to come back a week later when a decision would be made? Would we ask him if he wanted a lawyer?

We have lots of procedural fairness available to people subject to deportation proceedings. The answer with respect to my example is clear. We would probably want to remove him quickly. We would have classified national security information which could not be disclosed on the street because it would reveal some of our procedures and protocols on dealing with security matters. That is one of the reasons why we do not make these things public. However, they are real and ongoing. So, getting rid of Carlos the Jackal would require a special procedure, and that is the security certificate procedure that we have developed.

In that particular hypothetical case, he is not a permanent resident; he has no status in Canada; he is hiding here; and he is to be removed to his country of citizenship. This is not a rendition. This is simply a removal to his country of citizenship; and in that case, there were probably a lot of countries looking for him. Nonetheless, that is a security certificate procedure, hypothetically, as opposed to a simple deportation removal.

I heard an hon. member, I think it was the member for Trinity—Spadina, say that the security certificate procedures breach the charter. They do not. They have all along, up until now, over all the years we have had them, been found to be charter-compliant, except for the Charkaoui case and the courts spotted flaws, things that we could do better.

In the Charkaoui case, the courts have said that presenting classified information to a judge without adequate disclosure to the person subject to the proceeding was not fair. It was not charter-compliant. It just did not go as far as it could. We could make more disclosure.

And if I can revive my hypothetical, we would not give the whole file to Carlos the Jackal. We would actually find a way to make him aware of the nature of the facts on which he is being removed from Canada.

The method chosen by the statute is the appointment of a special advocate. This is not a new construct. In security matters, we have already put to use specially retained security-cleared counsel in other aspects of litigation and security work. I will just give members one example.

When an individual employee of the Government of Canada or a complainant involving the work of CSIS or an opinion on a security clearance by a department based on the work of CSIS has a complaint about that, he or she may complain to the Security Intelligence Review Committee. That committee has routinely retained security-cleared counsel to view all of the evidence and to advocate on behalf of the individual who, for security reasons, is not able to directly see all of the classified information.

The special security-cleared counsel, under the SIRC security hearing procedures, has worked quite well, in my view. It has worked since 1984. There have been no serious concerns expressed about that.

Under the security certificate procedures here, we are inserting and putting into that an analogous mechanism where there will be a special advocate who will be a lawyer and who will have the ability to, under the supervision of the presiding judge, review all of the classified information or the classified information which the judge believes is necessary to allow adequate sufficient charter-compliant disclosure to the individual subject to the hearing. That is a good mechanism. I fully support it and I am sure it will work.

The last thing I want to say is that I have a concern about section 82.2. This section would allow peace officers, when a person is released during the certificate procedure, to arrest the person if they know there has been a breach of the condition or if they anticipate a breach.

I am concerned about giving that authority to a peace officer, about giving to peace officers the power to arrest someone because they think there might be a breach of condition happening. I am worried about an abuse, not a fair situation or a good faith situation. I am worried about a breach. However, this issue can be looked at by the committee in terms of fairness, charter compliance and the right allocation of power.

In all other respects, I remain supportive of this legislation.