Mr. Speaker, I am pleased to rise to speak to this matter.
First, the presentation of the parliamentary secretary was fairly detailed on most of the technical issues. Therefore, I will not talk about what is contained in the bill. He has described the bill more than adequately.
I will address some questions before I get into some of the details of the legislation.
First, our country takes in over 250,000 immigrants and refugees every year. That is our lifeline. That immigration supplies human capital, skills and the talent we need on an ongoing basis.
When we have a country as open as Canada, there are elements who come to the country who do not belong here. They have committed crimes somewhere else or they may intend to commit crimes in our country. Most countries that deal with immigration expressly retain the right of removal from the country for aliens or non-citizens, whether they be permanent residents or just aliens in the country.
It is important for us to understand that the legislation is based on this assumption; Canada being an open country that invites and welcomes immigrants. Canada needs to have a mechanism in place where it does not have to go through rigmarole of proving beyond reasonable doubt all the crimes an individual may have committed before the individual could be deported out of the country or removed from the country.
This is an important concept for people to understand. Once we understand it and if we believe Canada ought to have that right in place, then I think everything else follows.
I have been a practising lawyer since 1977. I was called to the bar in 1977. Since then and before that, immigration legislation in Canada always has had clauses to deal with the inadmissibility of people who may want to come to Canada or may be in Canada as permanent residents or aliens. Therefore, this is nothing new. It is not as if suddenly we woke up one day and now imported into our legislation something that had not existed.
Security certificates have existed for the last several decades. They have been challenged in the past. They now have been challenged in the Supreme Court. The Supreme Court provided some instructions for the government and the government brought the legislation forward to meet the deadline of February 23.
If the Liberals had to introduce this legislation, we would have looked at the home grown model of the SIRC, the Security Intelligence Review Committee. We may have chosen the U.K. system with a special advocate, which the government chose, but we may have brought in amendments to that system. That system has been under a great deal of criticism in the United Kingdom itself.
Therefore, this is not ideal legislation. There are no ideal solutions when we try to deal with organized crime or terrorism and the difficult questions of proof, of issues, of actions and omissions that may have occurred away from our shores in other countries. It is not easy to bring that evidence forward to deal with those issues.
Let me give a case in point, the Air India case. I was the attorney general when it was being investigated and I was the premier when the two individuals, who were eventually acquitted, were arrested for that. I know from the briefings I received from the Crown that the evidence for the crime was in different parts of the world. This is why it took so long for the Crown and the investigators to gather that evidence. Even then, we were unsuccessful in prosecuting that matter.
That simply brings this into focus. If someone is an alien or a visitor trying to get into the country and we have evidence or sources, which sometimes cannot be disclosed without jeopardizing and compromising our contacts or informants, we need the kind of process in the security certificates to deal with those issues.
Then there is the question that always arises. Why do we not deal with these issues through the Criminal Code. Under the Immigration and Refugee Protection Act, we have always had this regime where we have dealt with people who were inadmissible. The proof required under the act is not one of beyond reasonable doubt. It is essentially on the balance of probabilities or on reasonable grounds. It is a quasi-judicial, quasi-criminal matter so the proof is not as onerous.
This is appropriate in cases where our country faces danger from people who may have committed crimes elsewhere, who cannot be advised of the information completely and who cannot be given all the names of the agencies and informants from which we received information. Under those circumstances, it is appropriate to use that lower threshold and not the Criminal Code threshold. The fact is the evidence may not be in our hands. It may be somewhere else thousands of miles away from our shores. This is why these kinds of cases cannot be dealt with on the Criminal Code basis.
It is important to recognize that to come into Canada is a privilege. It is not a right for anyone in the world to come into the country except people who are Canadian citizens. Canada ought to reserve the right to deal with these individuals in a way that is appropriate, that is in keeping with our traditions of due process and the like.
Some of these crimes are often committed elsewhere. The information and evidence is elsewhere. It is important for us to protect those agencies and informants. They may have provided us with that information. Therefore, it is important we continue to have the mechanism in the immigration legislation.
When making the decision in the Charkaoui case, the court examined various models. I have said this before in the House. It is unfortunate the government chose this model. The government could have chosen a security intelligence review committee model, which is a home-grown, home developed model in Canada. It is more adversarial in nature and provides for better disclosure of the evidence. It also has provided in the past couple of decades a mechanism where the evidence can be scrutinized in the presence of counsel. I do not believe there ever have been any violations of security with respect to that process. Therefore, this was an appropriate model to adopt, but it was not.
The court also looked at the Arar case, how Mr. Justice O'Connor dealt with the issues of confidentiality, how he provided and facilitated the provision of information to the counsel for Mr. Arar, with all the security precautions intact. The government could have looked at that.
The court also addressed the issue with respect to the Evidence Act and how the attorney general of Canada could deal with the need for non-disclosure in certain cases. The government did not look at that. The government went to the United Kingdom model, which was not necessarily the best model. However, that is what we have and that is what we have tried to improve by bringing forth the amendments about which my colleague, the parliamentary secretary, talked.
Could this legislation have been better? Definitely. Could it have been different? Definitely. However, there is no question in my mind that the legislation is a necessary evil, so to speak. Ultimately, if we are interested in protecting our country from those who wish to do harm to it, it is important to keep in reserve, within the hands of the government, mechanisms that keep the country secure and safe. It is very important in the context of that to look at the due process, which has been provided in the legislation.
I believe the amendments, which deal with how one appoints an advocate, have enhanced the legislation. The legislation would give the public safety minister appropriate instructions for preparing a roster of security cleared advocates from independent, qualified members of the bar from across the country who would be provided with adequate resources to independently function when acting in the interests of the accused and in no one else's interests.
The choice of counsel is a cherished principle in our laws and in our centuries old conventions and I believe that choice has been preserved in the bill for the detainee. A detainee would have the right to choose from the independent roster and the judge would then appoint that particular advocate for the detainee barring circumstances where that might jeopardize either national security or may bring the individual into conflict.
There is also the issue of privilege. When the bill was presented in its initial form, it had no privilege. The detainee enjoyed no solicitor-client privilege at all, which exposed the detainee and the advocate and any communications with each other to disclosure. Therefore, it was seen fit by the committee to re-import the notion of solicitor-client privilege to the extent of protecting those communications.
The most important amendment in my mind is the amendment that the committee pushed through on the issue of torture. It clearly prohibits evidence that may have been derived, either primarily or secondarily, from torture. Any evidence that is tainted by torture would not be admissible in the proceedings with respect to the detainee.
Those four amendments have actually enhanced the bill. The bill could have been a lot better but this is the bill we were given and it is the one we are working with. The deadline is looming and we want to ensure this is dealt with expeditiously so that on February 23 a certain legal regime will be in place to deal with the existing certificates and a mechanism is available to issue others if needed. Of course, that is being done sparingly. As we know, over the last decade only 28 security certificates have been issued.
These are not easy issues. We need to balance national security interests with the interests of due process in our conventions and our laws. These decisions are not made lightly. I understand that some colleagues may have difficulty with these issues but when one is in the business of governing sometimes tough decisions need to be madeand we need to deal with balances that may not always be the way we would like them to be.
