Mr. Speaker, I appreciate the opportunity to rise before the House and discuss Bill C-3, An Act to amend the Immigration and Refugee Protection Act.
Canada has a long and honoured tradition of welcoming people from all over the world. Each year we admit more than 95 million people to our country, including 260,000 new immigrants. The vast majority of these people are individuals who enrich the fabric of our society through new visions, beliefs, languages and cultural backgrounds. However, some people try to abuse our openness and pose a danger to our country. Canadians insist on vigilance against these people who pose a danger to our nation, and in some cases, to other nations around the world. Such people cannot be allowed to stay in Canada.
This government wants what Canadians want. That is why we are unwavering in our determination to safeguard national security and to protect the safety and security of the Canadian public. This government has taken its commitment very seriously.
The Immigration and Refugee Protection Act provides the government with a process to remove non-Canadian citizens who are inadmissible on grounds of security, violating human rights, spying, or serious criminality or organized criminality. Through intelligence and investigation, Canadian authorities determine the risks posed by various individuals and recommend whether they should be allowed to remain in our country.
During these investigations, authorities must protect confidential information, such as sources, third party and foreign agency information and methods of operation. For example, some individuals have ties to larger organizations that are under ongoing investigation by our national security agencies. These investigations do not simply stop after the arrest of one person. Investigative techniques should not be disclosed as this could expose the investigation.
Furthermore, as human sources are often used during these types of investigations, revealing their identity could jeopardize not only the investigation but the safety of the source or even the source's family. As such, when the removal of a dangerous foreign national from Canada is sought and confidential information forms part of the case against the person, the security certificate process is relied upon if the person is unwilling to leave voluntarily. Such a process has existed in one form or another for decades.
Bill C-3 responds to the Supreme Court ruling in the Charkaoui case. In February 2007, the Supreme Court of Canada confirmed the use of security certificates generally. However, it did find aspects of the security process that required legislative improvement.
Bill C-3 introduces important new measures that will help better protect the rights of individuals subject to security certificates. There are three major components of Bill C-3: the new special advocate function; the new detention review rights awarded to foreign nationals; and the new rights of appeal in relation to federal court decisions.
In the Charkaoui case, the Supreme Court found that the government must do more to protect the interests of a person subject to a security certificate during closed hearings where confidential information is presented.
The first major change proposed by Bill C-3 is the introduction of a special advocate into the security certificate process and certain other proceedings under the Immigration and Refugee Protection Act. The special advocate's core role is to protect the interests of the subject by challenging the government's claim to the confidentiality of information, as well as its relevance and weight. The special advocate will also be able to make written and oral submissions to the court and cross-examine witnesses.
We realize that every case will be different and every case will have different needs. That means we cannot anticipate every twist and turn. That is why we are also adding a catch-all clause, section 85.2(c). This section authorizes the judge to provide the special advocate with any further powers that are necessary to protect the interests of the individual.
The public safety and national security committee reviewed Bill C-3 and after hearing from many witnesses, agreed to include several amendments related to the special advocate section of this bill. The amendments to the special advocate role enhance the fairness of the security certificate process.
The Minister of Justice will establish a list of persons. The public safety and national security committee has set out specific criteria to establish who may act as a special advocate.
Some of the qualifications include: membership in good standing of the bar of a province; relevant litigation experience; appropriate security clearance; and that their independence from the government as well as having no conflict of interest is ensured. The special advocate is a party to the proceedings to protect the interests of the subject and there should be nothing that impairs this ability.
As well, when a judge appoints a special advocate, he or she will have to consider the preference of the person subject to the certificate. When a person subject to a certificate requests that a specific individual be appointed as a special advocate in his or her case, the judge will have to appoint that person, unless satisfied that the appointment would unreasonably delay the proceedings, would place the individual in a conflict of interest, or would create a risk of inadvertent disclosure of information or evidence that could harm national security or endanger the safety of any person.
The special advocate will be able to communicate with the person who is subject to a security certificate without any restrictions before he or she sees the confidential information. An unclassified summary of the case would be provided to discuss with the individual. This should substantially assist the special advocate in preparing for the closed proceedings.
Once the special advocate is privy to the classified and confidential information, he or she can no longer communicate with anyone about the proceeding while it is ongoing, except as specifically authorized by the judge. This is to avoid any inadvertent disclosure of confidential information to the subject.
Again, I urge members to remember the importance of safeguarding such information to protect our national security and ensure the security of various sources.
However, even after seeing the confidential information, the special advocate can apply to the judge for permission to communicate with the person subject to the certificate. If the judge grants the request, the judge may impose conditions on the communication to ensure that confidential information is not disclosed.
Although the bill states that a person subject to a certificate does not enjoy a solicitor-client relationship with the special advocate, an important amendment was made by the committee. The change states that communication between the two individuals is to be protected as if a solicitor-client privilege existed between them. The amendment also states that the special advocate is not a compellable witness in any proceeding. This change further protects the interests of both individuals.
The second major change proposed by Bill C-3 is related to detention reviews. Under the security certificate process, a judge of the Federal Court reviews the detention of a person subject to a security certificate and determines if it is still warranted.
Prior to the Supreme Court's ruling on a security certificate in the Charkaoui case, permanent residents were entitled to detention reviews within 48 hours after their initial arrest and every six months afterwards. However, foreign nationals were only entitled to a single review 120 days after the certificate was found to be reasonable.
The court ruled that foreign nationals should have the same detention review rights as permanent residents. Bill C-3 enacts this ruling into law. All detention reviews will take place within the first 48 hours after arrest and every six months after the conclusion of the previous review.
Detention pending removal in a security certificate case is based on periodic assessment of the danger to public safety or national security. The person may be kept in detention until such time as he or she leaves the country or is removed from Canada. The security certificate process is about removing non-Canadian citizens from Canada because they represent threats to public safety and national security. Let me again stress this important aspect of the security certificate process, that a person would be released from custody if the person agreed to leave this country.
The last important change I wish to explain today is that of a new right of appeals. As it currently stands, the Immigration and Refugee Protection Act contains what is called a privative clause. A privative clause is contained in legislation that limits judicial review.
Bill C-3 will eliminate the privative clause. Appeals would only be allowed against the final decisions of the court on the reasonableness of the certificate and only if the judge decides a serious legal issue has been raised for the consideration of the Court of Appeal. This requirement, called a certificate of a question, is consistent with the way other decisions under the Immigration and Refugee Protection Act may be appealed.
Finally, Bill C-3 proposes transitional provisions that would allow for cases in progress under the current legislation to recommence under the new legislative regime if new certificates are signed by ministers. The transitional provisions are designed to ensure appropriate and ordered change from the old legislation to the new and would provide the benefits of the new legislation to the individuals subject to a security certificate.
If a new certificate is signed, the case would be referred afresh to the court to determine the reasonableness of the certificate. Special advocates would participate in the new court proceeding. Detained individuals would continue to be detained and would have the right to apply for new detention reviews with the benefit of participation from a special advocate.
Similarly, cases before the Immigration and Refugee Appeal Board where confidential information is relied upon would also benefit from the special advocate provisions. Bill C-3 gives thoughtful deliberation to the Supreme Court's concerns and takes into consideration the recommendations from several House of Commons and Senate committees.
Security certificates are a vital national security tool. We have a responsibility to our citizens and to the international community to make sure we do not become a safe haven for individuals with links to terrorism, serious criminality or organized crime or those who wish to spy in our country or who have violated human rights.
We also recognize that we have a responsibility to ensure that we do this in a manner that demonstrates clearly the Canadian values of justice, fairness and respect for human rights. Bill C-3 achieves this necessary balance. I encourage the hon. members of the House to support Bill C-3.