Mr. Speaker, I am pleased to add my voice to the debate on Bill C-51, the anti-terrorism act, 2015.
The international jihadist movement has declared war on Canada. We have tabled this important legislation to stop terrorists dead in their tracks before they can harm law-abiding Canadians. The legislation before us contains a number of provisions that work toward a common goal, which is to protect Canada and Canadians. It is a broad approach to a global program that has reached our doorsteps.
I will focus my remarks today on important amendments to the Immigration and Refugee Protection Act, commonly known as IRPA, and specifically to Division 9 of the act.
As members of the House know, IRPA sets out the legal framework for Canada's immigration and refugee programs. Our immigration programs serve a number of purposes, including enriching the social and cultural fabric of Canada, reuniting families, and strengthening our economy.
However, the immigration program also plays a fundamental role in maintaining the integrity of our borders and safeguarding our national security. In this respect, the government must sometimes turn to Division 9 of IRPA, which contains mechanisms that allow the government to use and protect classified information when deciding whether a non-citizen can enter or remain in Canada.
Indeed, Division 9 mechanisms and their predecessors have been used for more than three decades. These include security certificates before the Federal Court and applications for non-disclosure before the Immigration and Refugee Board and the Federal Court.
Certificates commonly known as “security certificates” are perhaps the most well-known proceeding under Division 9. They are used in exceptional circumstances when classified information is required to establish that a non-citizen is inadmissible to Canada for serious grounds of security, human or international rights violations, or serious or organized criminality.
The information involved in these cases, which we commonly refer to as “classified information”, cannot be disclosed publicly because doing so would injure national security or endanger the safety of a person. The certificate is signed by the Minister of Public Safety and Emergency Preparedness and by the Minister of Citizenship and Immigration. It is then referred to the Federal Court. If the Federal Court determines the certificate is reasonable, it becomes a removal order that is in force.
The system includes strong safeguards. There is broad judicial discretion to ensure the overall fairness of the proceedings. Furthermore, since 2008, special advocates who are non-governmental lawyers with the required security clearance to handle classified information protect the interests of non-citizens during the closed portions of the proceedings.
In 2014 the Supreme Court of Canada found that the security certificate regime provides for a fair and constitutional process. Today we see that the recent phenomenon of individuals travelling abroad to engage in terrorist-related activities reinforces the need for Division 9 proceedings. In some of these cases, Division 9 may be the only mechanism available to pursue immigration proceedings against non-citizens so that they are unable to obtain or retain an immigration status, such as a permanent residency, and pursue their removal from Canada.
Given the nature of the global threat environment, it is critical that the government be able to rely on effective and fair mechanisms to protect classified information in immigration proceedings before the courts and the Immigration and Refugee Board. Therefore, we believe that it is important to make limited and targeted changes to Division 9.
Recent Division 9 cases have shown that there are times when classified information has become part of a case, even when it was irrelevant, repetitive, or not used by the government to prove its allegations. It also did not allow the persons subject to the proceedings to be reasonably informed of the case against them. The lack of clarity in Division 9 with respect to what information needs to form part of a case has increased the length of time needed to complete these proceedings. This is inconsistent with the legislative obligation to ensure expediency in these cases.
Classified information must always be handled according to specific procedures distinct from those used to handle unclassified information. These procedures are meant to protect the classified information and reduce the risk of its being compromised. The current lack of clarity in Division 9 has also resulted in classified information becoming part of the court proceedings even though it was not used or needed. This is inconsistent with the need to reduce the risk of information being compromised.
Furthermore, as it stands now, an appeal or judicial review of an order to publicly disclose classified information can only take place at the end of the proceedings. By the time this appeal could take place, it would be too late, as the information could have already been disclosed publicly. This disclosed information then could result in injuring national security or endangering people.
To avoid releasing information, the government may elect to withdraw from the proceedings the classified information that has been ordered to be publicly disclosed, which could potentially weaken the case. The government could also withdraw the allegations against the person, but this is inconsistent with the need to ensure that we pursue all avenues to deny entry and status to individuals who are inadmissible to Canada, especially for serious reasons such as treason.
That brings me to the amendments found within Bill C-51, which are designed to address these challenges.
First, we intend to amend Division 9 to clarify what classified information forms part of a security certificate before the federal courts in cases involving classified information before the Immigration and Refugee Board.
This would include information that is relevant to the case, that forms the basis of the case—in other words, information upon which the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration rely—and that allows the person to be reasonably informed of the case against them.
Relevant information that is not relied upon would also be provided to specific advocates, but this information would not automatically be included as evidence in the case. To ensure fairness, special advocates would have discretion to review this information and determine if some of it should also be included as evidence.
This would codify a practice that has evolved over time in Division 9 cases since the Supreme Court's decision on security certificates in 2008. It would help provide more certainty as to how these cases are being conducted, thus reducing the amount of time needed for these cases and making the process more expedient and fair for the person.
The regime would also be amended to allow the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration to ask a judge to be exempted from providing some relevant classified information to the special advocates that is now relied on and which does not reasonably inform the person of the ministers' case.
To be clear, a judge would make this decision and would have broad discretion to communicate with special advocates as required. Special advocates could also make submissions to the court as to whether the exemption should be granted. The judge would only grant the exemption if he or she were satisfied that the information did not enable the person to be reasonably informed of the ministers' case.
The final measure we are taking is to allow the government to appeal or to seek judicial review of orders to publicly disclose information that it considers injurious to national security or the safety of any person during Division 9 proceedings rather than at the end of those proceedings. This will provide another opportunity to argue before the court that this information should not be made public.
The changes we are making to protect Canadians are important. I encourage all members of the House to support Bill C-51.