Mr. Speaker, I understand that we are now finally discussing the substance of the bill in order to decide whether to accept or reject it. We will be voting against this bill for the following reasons.
We believe that if a judge is to make a decision that will result in the incarceration of an individual for an indeterminate period of time, he must be convinced beyond a reasonable doubt. That is the criterion which the judge should use to make his decision. That is what the law prescribes for all Canadians—for those governed by Canadian law and for Canadians.
I will point out shortly that security certificates only apply to foreigners. In this case, since we decided to give them the right to appeal, this appeal should be of the same sort, that is it should deal with a question of fact, a question of law or of law and fact.
We were also not satisfied with how the whole issue of the special advocate is dealt with, although we recognize that a significant improvement has been made to the legislation.
At this time, perhaps, people are still watching us, or some may watch us later. I would like to make it easier for them than it was for me to understand this legislation. Few people unfamiliar with the bill understand what we are talking about, the term used and our discussions.
I would first like to say, so that it is clearly understood, that the security certificate is badly named. We should really be talking about a deportation order because, in practice, that is what is being requested. This is why it applies only to aliens and not to Canadians. Indeed, under section 6 of the Charter of Rights and Freedoms, Canadians have the right to live in Canada, to leave the country and return, which is not the case for aliens. The charter refers to every Canadian citizen. Therefore, it does not apply to aliens.
What is a security certificate? Generally speaking, secret services may believe that a person is dangerous. In our modern world, dangerous people, the kind of people we fear, are terrorists who have been trained and sent to live in Canada, remain unnoticed if possible and, at a given time, carry out a terrorist act. That is what happened on September 11. Many of the people in those planes, who took part in the take-over of the planes and the subsequent suicide attack, were model citizens. They are known as “sleeping cells.” By the way, this is a ridiculous term, not that we are accusing anyone here, because the definition of a sleeping cell is a model citizen. He is here to go unnoticed among us. So he is a model citizen. It seems a bit unfair when we think about it.
Let us return to the security certificate. We are talking about a deportation order that has been requested by two ministers, the Minister of Citizenship and Immigration, because this deals with the Immigration and Refugee Protection Act, and the Minister of Public Safety, because, he, obviously, is responsible for national security.
If they believe an alien is dangerous, they issue what we call a security certificate to expel that person from Canada. The certificate is brought before a judge who must be convinced that the person is dangerous. In fact, it is not necessary to convince the judge, only to have him think that it is reasonable to believe that the person is dangerous based on the evidence presented to him.
Obviously, if they feel that way, it is because they have secret information about that person. That is the reason you will often hear people say they do not know what evidence was presented to the judge. In fact, very often, the evidence comes from three kinds of sources.
First, the source might be an ally who gave us information on the condition that we not make it public. Second, the source might be an undercover agent, whose life may be at risk if he is discovered or who at least risks never working as an undercover agent again and losing his secret agent status. Third, the evidence can come from investigation methods or terrorist group surveillance activities that should not be disclosed for fear of helping those concerned get around those methods.
This type of evidence is presented to the judge. The judge hears this evidence in the absence of the accused. In fact, we should not use the term “accused”. We should always avoid talking about the “accused” and instead talk about the “person concerned”, since that person is not being accused or charged. That person is believed to be dangerous and because he is considered dangerous and he is a foreign national, we want to deport him from the country. We do not want to inform the person concerned because if he is indeed a terrorist, as we suspect, he could later tell others about the investigation methods or the name of the undercover agent.
The judge hears the evidence in the absence of the person concerned and in the absence of his lawyer, if he has one. Then the judge decides which pieces of evidence the person concerned can be informed of. For example, if we know that the person received training in Pakistan and he was seen in a certain village doing a certain thing, the judge can tell him he was seen without telling him who saw him or mentioning how that information was obtained and without disclosing the names of the people who were directly responsible for providing that information.
The person concerned can try to explain why he went to Pakistan and try to convince the judge that he did not receive terrorist training and that he is not part of one of those sleeper cells we are so afraid of. As you can see, there are limited ways to challenge the arrest since the person is not provided the confidential information, which is also probably the most important information.
In fact, we are talking about a removal order. The individuals need only to leave the country to pursue their activities. Then why do some people not leave? Because in some cases—increasingly so—if these people go back home after being deported for security reasons, they are sure to be sent to prison in the destination country, like Morocco, Syria and many countries in the Middle East. Not only are they sure to go to prison, but since they are suspected terrorists, they will likely be tortured. This has happened a lot lately. Sometimes they are tortured to death.
Consequently, these people do not want to leave Canada and contest the removal order because they are afraid to go back to these countries. Others contest the removal order because they have been in Canada for a number of years. They have started a family here, they have jobs and Canada has become their country, even though they have not taken out Canadian citizenship. Those are some reasons why people contest the removal order.
Now, because it considers these people dangerous, the government is thinking of incarcerating them during the procedures, to prevent them from escaping and going to live somewhere else in Canada under a new identity or whatever. The government is thinking about a form of incarceration. It is true that these people can always leave the country if they wish. That is why some members of this House say that it is a three-walled prison, although they never explain what that means.
Keeping the same image, I would answer that it may be a three-walled prison, but in some cases, there is a cliff where the fourth wall should be. The person who is incarcerated cannot really leave, because leaving would mean certain death. That is why these people do not want to be deported.
When we understand that, the situation becomes much clearer. We understand that these people are not Canadian citizens and that they have not been accused of anything. The government simply has information that they belong to a terrorist group. But that does not have to be proven beyond a reasonable doubt in court. All it takes to keep these people in prison is for the judge to be satisfied that this belief is reasonable. And they can be kept in prison for many years. In fact, they are incarcerated indefinitely. That is why the Supreme Court ruled that this was not just an administrative matter. These people have certain rights. In my opinion, that is the most important thing.
I would like to read some excerpts from the Supreme Court decision so we can have an idea of its intentions. According to the court, it is not simply an administrative decision, but it is also as serious as criminal charges. Even if they were never charged, it is just as serious and they must be granted certain rights. In paragraph 60, the court said:
It is one thing to deprive a person of full information where fingerprinting is at stake, and quite another to deny him or her information where the consequences are removal from the country or indefinite detention. Moreover, even in the less intrusive situations, courts have insisted that disclosure be as specific and complete as possible.
As they say, it is a serious decision. The information must be revealed.
I will go a bit further to understand the background. It is about a removal procedure. People will perhaps remember that this summer, an individual was arrested at Dorval. I believe he was Russian, but his nationality was not known when he was arrested. He had several pieces of ID, a considerable amount of money in different denominations, and so on. A security certificate was issued against him and he left. It was not long. He left and was not sent to prison. He returned home or went elsewhere. Those who stay here do so because they cannot leave Canada for fear of torture or death.
In paragraph 91, the Court stated:
[The government] asserts that when the provisions were drafted, it was thought that the removal process would be so fast that there would be no need for review.
Because of what I explained, we can see that it takes more time. Some people have remained in prison for five, six or eight years on a security certificate. So it is a very difficult detention. In paragraph 96, the Supreme Court said:
Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual. (The same may be true of onerous conditions of release that seriously restrict a person’s liberty without affording an opportunity to challenge the restrictions.)
We have read in the papers about people who complain about the bracelet, conditions of house arrest and so on. In paragraph 98, the judges say:
More narrowly, however, it has been recognized that indefinite detention in circumstances where the detainee has no hope of release or recourse to a legal process to procure his or her release may cause psychological stress and therefore constitute cruel and unusual treatment.
Further on, in paragraph 105, they add:
It is thus clear that while the Immigration and Refugee Protection Act (IRPA) in principle imposes detention only pending deportation, it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions.
In paragraph 107, the Supreme Court states:
Drawing on them, I conclude that the s. 7 principles of fundamental justice and the s. 12 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.
Clearly, it is because of the consequences that these decisions may mean indefinite incarceration in exceptional cases and the Supreme Court believes that enhanced procedural safeguards are needed.
We can take the Supreme Court's reasoning and apply it to the provisions that are before us. We understand that security certificates cannot be issued against Canadians, but sometimes people are so dangerous that the government wants to make use of certain legal provisions, such as those in part XXIV of the Criminal Code. Sometimes the government says that these people have to be held in prison indefinitely. This is a very harsh sentence, although it is not quite as harsh as life imprisonment.
In such cases, judges must be certain. They must not just believe that the reasons for which the person is thought to be dangerous are reasonable, as in cases of foreigners who are the subject of removal orders. Judges must be certain. We would have preferred that the judge's decision, which may result in indefinite detention, be made on the basis of the same criteria: being certain beyond a reasonable doubt. That is one of the two main reasons we will be voting against this bill.
The second reason concerns the decision to appeal. I should clarify that they decided to reinstate the appeal process. There was one before for the security certificate process, but it was abolished at the beginning of the last decade. Nevertheless, they decided to reinstate it, albeit in a very strange way. To keep the person in jail and maintain the security certificate and the removal order, the judge must determine if his or her own decision is a legal issue of general public importance. An appeal can be allowed on those grounds, and the judge drafts the notice of appeal for the person.
If I had just been convicted, I might not have much faith in the way the judge would present my case to the court of appeal. The purpose of the appeal is to advance the law, which is very noble. It is a bit like medical research, except that in this case, it does not really affect the patient.
I asked some officials where they found this appeal procedure that I had never heard of in my 30 years of practising law. They said that it came up in administrative law cases. However, the judges have told the officials that this is not administrative law. That is why conditions are needed to make it constitutional. The ruling is so serious as to be almost criminal in nature. That is not what they tell us, but that is what it boils down to. We are asking for improvements to the procedure so that the person involved can have a better opportunity to tell his or her side of the story, with full knowledge of the evidence, where possible.
This is what section 759 of the Criminal Code says about what happens when a Canadian is found to be a dangerous offender and the courts want to sentence him or her to time in prison:
An offender who is found to be a dangerous offender under this part may appeal to the court of appeal against that finding on any ground of law or fact or mixed law and fact.
In cases that are just as serious, why would we not grant the same rights to a person who, I would remind the House, has never been charged or convicted of anything, when all we have is some information held by security agencies that suggests that the individual is dangerous? If we must consider foreign nationals believed to be dangerous based simply on reasonableness, I think we should give them at least the same opportunity we give to Canadians we want to put behind bars because they are dangerous offenders, guilty beyond a reasonable doubt, and who have been convicted for several offences before they were declared dangerous offenders. We must grant the same rights to foreign nationals. That is why, once again, we would have liked to improve that piece of legislation. That was impossible, which is why we cannot accept this and why we will vote against it.
When the minster says this is a matter that should go beyond party politics and that we should have a different attitude, I do not see anything partisan about our attitude. For such an important decision, he should have sought the consensus of all members.
After such a long day, I hope to have nevertheless enlightened a few people who did not understand what a security certificate is. What is important to remember is that it is a deportation order because someone thinks such people are dangerous. The security certificate applies only to foreign nationals and not to Canadians. They are not given all the evidence because—
