Mr. Speaker, I am very pleased to rise to speak to Bill C-3, the government's response to the Supreme Court decision with respect to security certificates and also the government's response to the Standing Committee on Public Safety and National Security and the subcommittee that reviewed this aspect.
Getting the balance right between the civil liberties of citizens and the duty to protect citizens from criminals and terrorists is never easy.
I must say, in Bill C-3, the legislation we are debating today, I believe the government has made an attempt to achieve that balance. The government has paid attention to the work of the House of Commons Standing Committee on Public Safety and National Security and the subcommittee on the Review of the Anti-terrorism Act.
Recommendations of the subcommittee relating to the use of special advocate for processes other than security certificates, that is the listing of terrorist entities, the deregistration of registered charities and denial of charitable status, and applications for the disclosure of information under the Canada Evidence Act are still under study by the government. The government has, however, incorporated the subcommittee's recommendation to employ special advocates counsel for the security certificate process.
Security certificates are not a post-9/11 product. They have been around for more than 30 years. They are an instrument used very sparingly. Only 28 security certificates have been issued since 1991 and only 6 since September 11, 2001. Nineteen individuals have been removed from Canada as a result of security certificates. They are used to remove from Canada foreign nationals or permanent residents, not Canadian citizens, who are deemed to be security risks to Canadians. Individuals detained under security certificates may leave Canada at any time. Admittedly it is not always possible to find a jurisdiction that will accept these people or locate a jurisdiction that will not torture or cause them harm once they arrive. However, there have been many successful removals.
The subcommittee of the House of Commons Standing Committee on Public Safety and National Security reviewed the anti-terrorism legislation, which was required after five years that it was brought into play. The committee decided to include a review of security certificates even though they were not a feature of the anti-terrorism legislation. They are instruments administered by Citizenship and Immigration Canada.
I had the honour to work on this committee and participated in the review of the anti-terrorism legislation. Testimony from witnesses completed in the 38th Parliament before it was dissolved. Therefore, we had witnesses in the 38th Parliament and that testimony was regurgitated or brought back before the new Parliament. The subcommittee and the standing committee issued an interim report in October 2006 and a final report in March 2007 in the 39th Parliament.
The interim report had to be released to deal with the provisions of preventive arrest and investigative hearing contained in the Anti-terrorism Act. These provisions had been sunsetted and were about to expire.
There is often misinformation in the minds of the public about how security certificates work.
For example, the individual about to be detained is informed of what they are accused of. What they are not told is the sources of information employed by the Canadian authorities (CSIS, RCMP etc.) to convince a judge that the person constituted a threat to the security of Canada.
Persons detained, as I said earlier, may also leave Canada at any time. This can be problematic, admittedly, for some individuals for some countries. However, there are examples of people returning to their countries and not being persecuted.
The security certificates process has been challenged in the courts in Canada and had been affirmed as not violating the Canadian Charter of Rights and Freedoms. However, on February 23, 2007, the Supreme Court of Canada pronounced that the security certificates process was inconsistent with the requirements of the charter.
The Supreme Court concluded that these provisions of the act that allowed for the use of in camera, ex parte proceedings from which the named person and his or counsel were excluded violated the right to life, liberty and security of a person under section 7 of the charter.
The court found that the right to a fair hearing included the right to a hearing before an independent and impartial judge who decided the case on the facts and the law, the right to know the case that had to be met and the right to meet that case. Since evidence heard in camera and ex parte could not be tested by the named person and could not be disclosed by a judicially authorized summary of that evidence, the provisions of the act violated section 7 of the charter, the right to liberty.
The court also concluded that the provisions could not be saved by section 1 of the charter as being demonstrably justified limitations necessary in a free and democratic society. The Supreme Court gave Parliament one year to replace and reform the relevant provisions of the act.
The court made reference to the existence of special counsel, special advocate or amicus curiae measures used in Canada and in the United Kingdom where there was a requirement to protect sensitive information while still recognizing the right of individuals to meet the case with which they were confronted.
With respect to security certificates, our committee recommended changes to the process in our March 2007 final report. We recommended the use of security cleared special advocate counsel for the security certificate process, but also for the listing of terrorist entities under the Criminal Code, the deregistration of registered charities and denial of charitable status to applicants under the Charities Registration (Security Information) Act, and applications for the disclosure of information under the Canada Evidence Act.
These three processes all have star chamber characteristics, in my judgment and in the judgment of the committee, and we recommended changes to improve the transparency and fairness of these processes. In Bill C-3 the government has accepted the recommendation to create special advocates to deal with security certificates.
With respect to the use of special advocates for processes other than security certificates, the ones I have just mentioned, the government, in its response to the subcommittee's report this summer, seemed to be lukewarm. The government's comment was as follows:
At the present time, the Government believes that further study of the use of special advocates in other processes is required.
I am hoping that the various government portfolios are still reviewing that and I would like to see some action on that in the future or a wholesome and fulsome response.
It would appear that changes to these other processes are not reflected in Bill C-3 and hopefully they will come later. These processes have the same in camera, star chamber qualities, in my judgment.
The role of the special advocate counsel is spelled out in clause 85 of Bill C-3.
The subcommittee of the House of Commons Standing Committee on Public Safety and National Security had other recommendations on the topic of security certificates. One of these was as follows:
The Subcommittee recommended that sections 79, 81, 112, and other provisions of the Immigration and Refugee Protection Act be amended so as to allow for an application to the Minister of Citizenship and Immigration for protection only after a security certificate has been found by a Federal Court judge to be reasonable.
In its response to the House of Commons report, the government responded this past summer to this recommendation as follows. The government stated that it agreed “with the stated objective of making the process more expeditious and will examine methods to do so”.
Bill C-3 eliminates the suspension of consideration of the reasonableness of a security certificate that occurs when a person named in it makes an application for protection. In addition, Bill C-3 requires that a judge of the Federal Court must commence a review of the detention within 48 hours.
With these two provisions, the government has responded to the recommendation of the sub-committee on this matter. This improves the sequencing of the process such that people will not be seeking protection from being sent to a country where they would be at risk until a Federal Court has determined whether or not the security certificate is reasonable.
The sub-committee also recommended the following for security certificates:
The Subcommittee recommends that section 78(j) of the Immigration and Refugee Protection Act be amended by adding the words “reliable and” before the word “appropriate”.
The government has incorporated this wording into section 83(1)(h) of Bill C-3. In my view this provides greater certainty that evidence presented to a judge, if obtained by torture, will be inadmissible. Our party at committee introduced amendments to make that even more clear. I am glad to say that the government supported that amendment as well.
Bill C-3 addresses the key concerns of the Supreme Court of Canada and the report of the House of Commons Standing Committee on Public Safety and National Security. For these reasons, I believe Bill C-3 deserves the support of the House.