Derek Lee

[Criminal Code, November 21st, 2007]

Mr. Speaker, with the unanimous consent of the House, which I believe you would find, I move that the first report of the Standing Joint Committee on Scrutiny of Regulations, presented to the House earlier this day, be concurred in.

[Committees of the House, November 21st, 2007]

Mr. Speaker, I have the honour to present, in both official languages, the first report of the Standing Joint Committee on Scrutiny of Regulations.

If the House gives consent, I intend to move concurrence in this report later today.

[Immigration and Refugee Protection Act, November 20th, 2007]

Mr. Speaker, as I understand the legislation, the judge involved does not represent the government. The judge does not speak for the government. The judge is in an impartial judicial appellate function. The law requires that a judge review, as in an appeal, the decision of the government to determine if it is reasonable or not. That is what the judge does.

There is a departmental advocate, so to speak, someone to carry the case for the government. That person knows everything, if the advocate has done his or her homework, about the individual. The judge can know everything and at the end of the process would know everything.

The special advocate will work on behalf of the person subject to the certificate but will be paid by the government, much in the way legal aid pays from time to time for representation in criminal courts. The fact that the government pays the special advocate does not create a barrier, as I look at it, with the individual.

However, the member raises a good point. We in this country are quite used to having that existing common law relationship of solicitor-client. I am wondering whether the fact that the government describes this position not as a lawyer or counsel but as a special advocate somehow alters the solicitor-client relationship.

That is an interesting question that I hope will come up in committee. Perhaps one or more of our law societies may choose to address just what exactly is the relationship, the obligation, of the special advocate to the person subject to the procedure.

[Immigration and Refugee Protection Act, November 20th, 2007]

Mr. Speaker, as I read the bill, the answer to the question is yes and no. There have been some procedural changes to ensure that the refugee claim component still exists and is dealt with under the security certificate procedure. The current law actually provides for the displacement of refugee claim procedures.

Before every removal in a refugee claim, as we know, there is the pre-removal risk assessment, the PRRA, and pre-removal risk assessments result in people not being removed to places where they will be in physical jeopardy. The court has said that we do not have to do the PRRA on the security certificate. I think that is the way the courts have interpreted it: that security certificates are so significant that we do not have to do the PRRA.

However, this brings back in through the side door the refugee procedures, so there may in fact at some point be a clash between refugee procedures and PRRA. I do know that generally Canada does not want to deport people to countries that have a death penalty. Canada avoids that. In a security removal, people are not being deported on crimes where they are subject to the death penalty. Canada is simply deporting a non-Canadian to the country of origin.

The risks may still be there. The amendments to this bill make it more sensitive to the issue the member raises, but in no case is there an absolute barrier on the removal of someone subject to a security certificate.

[Immigration and Refugee Protection Act, November 20th, 2007]

Mr. Speaker, I have a funny feeling that if we just in theory dropped the term “security certificates” and took it right out of the legislation, put the procedural provisions into the deportation provisions, added a little tweak to protect the classified information and a little tweak to provide for protection of public safety, then we would not have so much objection.

What we would have is a deportation of a non-Canadian just the way we would deal with someone involving serious criminality or another basis for deportation. Then we would not have this red flag of security this, security that, security certificates, and big brother and all that stuff. We could just say, “This was a deportation for security reasons, itemized, and presided over by a judge”. The procedure has to go to a judge.

The other deportation procedures do not even go to a judge. This procedure goes to a judge. It is imbued with tons of procedural fairness. Now we have even new fairness with the thumbprint of approval of the Supreme Court of Canada. I think that partially answers the member's question.

[Immigration and Refugee Protection Act, November 20th, 2007]

Mr. Speaker, we are debating a bill that is intended to amend the Immigration and Refugee Protection Act for the purpose of making it more charter compliant. In fact, the government did not just dream this up. The bill has come to us as a direct result of a decision of the Supreme Court of Canada in the Charkaoui case, wherein the court identified a weakness in procedural fairness.

I think it is fair to say that many people had identified this potential problem over the years. It was never clear to all of us that the procedure which then existed would fall so short of charter compliance standards that we had to fix it. The problem was identified some years ago, and this bill attempts to make a repair, a fix, to the section in the Immigration and Refugee Protection Act to better protect those who are subject to the procedure.

I want to say a few words about the role of the Supreme Court in bringing about these kinds of changes.

This is not the first time Parliament has been asked, invited or told by the Supreme Court of Canada to do some additional homework to repair our legislation. I can recall a situation that developed about 10 years ago. It was the Feeney case, which was in front of the criminal courts. The case had to do with the ability of a police officer or peace officer to pursue an individual who was suspected of a crime. It is essentially a scenario involving hot pursuit, where the individual is seen committing the crime and then followed until the officer is able to arrest the individual and bring him or her in for either questioning or charging.

In the Feeney case, the police officer, in pursuing the individual, followed him to his residence. The individual entered his private residence and at some point the police officers followed and went in. The question that came up was whether a police officer could invade the privacy of a private residence without a warrant.

Up until then, our laws and our court jurisprudence had accepted that in a scenario of hot pursuit, a police officer could follow and enter into a private residence. In the Feeney case, the Supreme Court found that under the charter the police could not go into a private residence in that circumstance, and that the law needed repair.

I want to go through this carefully because I think this case and others are developing a kind of a protocol and jurisprudence, a kind of a dialogue with the Supreme Court, one that is necessary. It took us a long time to get here.

When the Supreme Court makes a charter interpretation of the law and it finds something non-compliant with the charter, it has the ability to strike it down immediately, or to strike it down after a certain period of time, or to read in a change to effectively legislate. The court can say that it will add these words in the statute, just like Parliament should have legislated them in the first place.

It does not do that very often. It does not read in very often and it perhaps does so reluctantly. In this particular case, in the Charkaoui case, that brings us this legislation, it did not read in. It gave Parliament time to repair.

In the Feeney case about 10 years ago, it struck down and gave Parliament six months to fix it. At the time it made the ruling Parliament was going into a general election. In my view at the time I thought that was pretty dumb of the Supreme Court. I am saying this with some respect. Looking back I have the benefit of 20:20 hindsight of course, but at the time the Supreme Court of Canada gave Parliament only six months to fix a piece of criminal law legislation when we were going into a general election, which would necessarily involve a break of several months. This did not give Parliament enough time.

At some point the bright lights turned on and the Department of Justice went back to the court and obtained a further extension. That was reasonable. The court was not unhappy with that. The point at the time was that this business of the court disallowing and giving Parliament three months or six months had to be done with a working knowledge of how Parliament worked. The government itself does not have the power to legislate. The government must bring the matter to Parliament and Parliament, through both Houses, makes the changes.

I was very unhappy about the Feeney situation that developed with Parliament. It has however allowed the development of a dialogue between the courts and Parliament. In this case the court gave Parliament a year and that should be enough time. In this case, if the House passes the legislation, it can deliver on what the court hoped we might deliver on. The court is doing its job. I do not criticize the courts for interpreting the law on behalf of citizens.

In this particular case the law does not invent or reinvent security certificates. It revises the procedure that is used in relation to security certificates. I know that there are those in the country who question the need for security certificates under the Immigration and Refugee Protection Act.

I have always accepted and they have been in the law here for some time, that our government, the people representing the people of Canada under the Immigration Act, need the ability to remove people from Canada. We do it all the time.

Every week there are dozens of people being removed from Canada as illegal immigrants. These are people who do not have status here, people who should not be here. They are removed simply because they do not comply with the Immigration Act or maybe they have serious criminal records.

The reasons for removal are all set out in the statute. To my way of thinking, the security certificate provisions are simply a refined component of immigration deportation procedures. It is not a special thing developed to remove whomever the government thinks it might want to remove. In fact, if I can take that other perspective, it is simply a deportation procedure on a faster track with one important difference.

The person involved has been found by the government, not simply an official in the government, not an immigration officer or not a bunch of immigration officers, and not the Canada Border Services Agency but two ministers of the Government of Canada and effectively the cabinet, to be a danger under national security and under security definitions, and must be removed.

We must always remember that we are not dealing with Canadians. We are dealing with non-Canadians. The security certificate provisions do not involve Canadians, only non-Canadians. The non-Canadian category includes people with no status and people who have permanent resident status but are not citizens.

I have always maintained that government needs the authority to remove people because we deport people all the time. There are perhaps two reasons why the security certificate procedure has been designed specifically for security reasons.

First, the circumstances involving security may or may not be quite pressing. As history has evolved, it would appear that the circumstances lying behind security certificates, in most of the cases they have been used, are not that pressing. The procedure has not been used all that often, a dozen or two times over the years perhaps. It is not like the person is a terrorist and about to push the button. The certificates have involved individuals who comply with the security concern definitions.

The other reason for a specific procedure is that in dealing with security matters some or most of the information that will be brought forward to describe the security concern will be information that is protected, secret, confidential, classified, or whatever we want to call it. In most circumstances, it would be neither appropriate nor wise, nor allowable to present that information in an open court or public forum.

We have classified that information because it involves security matters outside the country and has been received on a secret, classified basis, and analyzed and presented. There needs to be a procedure to protect that information for the same reason we protect all classified security information. We do that routinely as a country.

We protect our classified information right through the entire range of government. If we are using classified security information in relation to an individual subjected to these procedures, then we need a special procedure that will do that. That is one of the reasons why we use the security certificate procedure.

I will just offer a hypothetical example, one that is not too bizarre. I will refer to the mythical Carlos the Jackal, who I understand is now deceased. Imagine that person had been found living in Moose Jaw under an alias and we wanted to remove him from this country, but he had not committed any offences in Canada. Would he have been a simple deportee? Would we invite him for a hearing in front of an immigration officer and then tell him to come back a week later when a decision would be made? Would we ask him if he wanted a lawyer?

We have lots of procedural fairness available to people subject to deportation proceedings. The answer with respect to my example is clear. We would probably want to remove him quickly. We would have classified national security information which could not be disclosed on the street because it would reveal some of our procedures and protocols on dealing with security matters. That is one of the reasons why we do not make these things public. However, they are real and ongoing. So, getting rid of Carlos the Jackal would require a special procedure, and that is the security certificate procedure that we have developed.

In that particular hypothetical case, he is not a permanent resident; he has no status in Canada; he is hiding here; and he is to be removed to his country of citizenship. This is not a rendition. This is simply a removal to his country of citizenship; and in that case, there were probably a lot of countries looking for him. Nonetheless, that is a security certificate procedure, hypothetically, as opposed to a simple deportation removal.

I heard an hon. member, I think it was the member for Trinity—Spadina, say that the security certificate procedures breach the charter. They do not. They have all along, up until now, over all the years we have had them, been found to be charter-compliant, except for the Charkaoui case and the courts spotted flaws, things that we could do better.

In the Charkaoui case, the courts have said that presenting classified information to a judge without adequate disclosure to the person subject to the proceeding was not fair. It was not charter-compliant. It just did not go as far as it could. We could make more disclosure.

And if I can revive my hypothetical, we would not give the whole file to Carlos the Jackal. We would actually find a way to make him aware of the nature of the facts on which he is being removed from Canada.

The method chosen by the statute is the appointment of a special advocate. This is not a new construct. In security matters, we have already put to use specially retained security-cleared counsel in other aspects of litigation and security work. I will just give members one example.

When an individual employee of the Government of Canada or a complainant involving the work of CSIS or an opinion on a security clearance by a department based on the work of CSIS has a complaint about that, he or she may complain to the Security Intelligence Review Committee. That committee has routinely retained security-cleared counsel to view all of the evidence and to advocate on behalf of the individual who, for security reasons, is not able to directly see all of the classified information.

The special security-cleared counsel, under the SIRC security hearing procedures, has worked quite well, in my view. It has worked since 1984. There have been no serious concerns expressed about that.

Under the security certificate procedures here, we are inserting and putting into that an analogous mechanism where there will be a special advocate who will be a lawyer and who will have the ability to, under the supervision of the presiding judge, review all of the classified information or the classified information which the judge believes is necessary to allow adequate sufficient charter-compliant disclosure to the individual subject to the hearing. That is a good mechanism. I fully support it and I am sure it will work.

The last thing I want to say is that I have a concern about section 82.2. This section would allow peace officers, when a person is released during the certificate procedure, to arrest the person if they know there has been a breach of the condition or if they anticipate a breach.

I am concerned about giving that authority to a peace officer, about giving to peace officers the power to arrest someone because they think there might be a breach of condition happening. I am worried about an abuse, not a fair situation or a good faith situation. I am worried about a breach. However, this issue can be looked at by the committee in terms of fairness, charter compliance and the right allocation of power.

In all other respects, I remain supportive of this legislation.

[Constitution Act, 2007 (Senate tenure), November 16th, 2007]

Mr. Speaker, I very much regret the tone of debate as it began with the words of the government House leader. In laying the basis for the proposed reform, he found it necessary to slag members of the other place, suggesting that they were hacks, that they did not work for their money and that they were inept. If there is a need for reform, let us deal with it straight up without slagging the other House and without shooting the messenger.

I am one of those who believes there is a need for reform, so the objective of the bill might be laudable. The question is how we are going about it.

I want to put a question to the member for Moncton—Riverview—Dieppe, who just spoke so well.

The government House leader said that the legal basis of their purported claim to change the constitution without using the amending formula was that a change happened in Senate terms some 30 or 40 years ago. Is it not a fact that when that change happened, there was no amending formula, the Senate itself partnered in the change and there were no objections from the provinces? That context does not exist now, as I understand it, and the government is moving headlong into this. I think it is just charging toward a brick wall. The government must know it. I regret it if it does not. Therefore, I regard the bill as just posturing.

Could the member respond to my suggestion?

[Budget Implementation Act, 2007, June 12th, 2007]

Mr. Speaker, after his excellent set of remarks, I would ask the member to acknowledge that it is very easy for the government to list a whole bunch of government expenditures flowing into the provinces. In fairness to everyone around here and all taxpayers, we have a budget of a couple of hundred billion dollars and there is a lot of money moving around the country being spent by the federal government in transfers, equalization and other things.

The nub of the issue here is this. Would he not agree that it is the letdown that people in several provinces feel now as a result of the decision by the government to, if not renege totally on some of the previous federal-provincial agreements, attempt to do an end run around them and remove the benefits that had been earlier negotiated and signed with the federal government?

[Privilege, June 11th, 2007]

Mr. Speaker, I am rising on a question of privilege in my own attempt to be helpful to the Chair in connection with a matter of privilege raised by the member for Brampton—Springdale last week. I rise principally because of reports that the member for Calgary East, who had been mentioned, indicated publicly that he would not be attending and rising in the House to deal with it.

The first question I would put to the Chair is whether or not that was a question of privilege. I know the Chair must determine that in the matter of parliamentary friendship groups but this, I would urge upon the Chair, is a matter of participation in a parliamentary activity and related to parliamentary responsibilities.

I would point out that these groups have a membership of MPs and senators. The executives are often chosen based on membership of the House and Senate. The meetings take place on parliamentary premises almost all of the time and both governments and diplomats make use of these groups for bilateral relations with Canada and Parliament.

I am urging that you accept that these parliamentary friendship groups are a crystallized and manifest accretion to the working context of members of the House, perhaps one that did not exist 100 or 200 years ago when the foundations of parliamentary privilege were born.

Second, was the member intimidated? I would put to the Chair that if the member felt intimidated then she was intimidated.

I draw reference here to what is sometimes called the thin skull theory in Tort law. You will be the best judge, Mr. Speaker, of whether or not the words and the body language constituted an intimidation of the member. However, there were words used right before and right after the formal meeting in question and I urge upon the Chair to recognize that the issue may not be the words, it may be the intimidation that is the issue.

Last, these things occur between members from time to time. They occur actually in a lot of different places, including on hockey teams, in offices and in churches between people and their day to day activities. I think it would be very helpful if the member for Calgary East would attend, rise and help us all, including the Chair, to sort this out in the proper way so that we can deal with it and move on.

[Income Trusts, June 11th, 2007]

Mr. Speaker, I am pleased to wrap up the debate on a private member's bill that attempts to redress the impact of the government's budget measure, essentially penalizing income trust owners in a way that had not been envisaged before the budget.

The reason why the member for Scarborough Centre has introduced this bill is to propose implementation of measures, which had been generated within the Liberal opposition caucus, to redress these punitive tax measures introduced by the government in its budget.

The issue for many Canadians, who hold income trusts, is not only that there was a tax measure introduced, but the tax measure introduced reneged on a promise. It was not like the government was backed into a corner and did not do anything in relation to one of its promises. It actually promised these income trust holders that it would not tax them and then turned around and equivalent to a sucker punch proposed to tax these people in this tax measure. It was not only a broken promise, it was an obvious betrayal.

Arguably income trust owners are not the majority of Canadians, but they are a very identifiable segment of Canadians. The ones we are concerned about, and the reason for the bill, is the seniors group who have always paid taxes. They have done their savings and now they chose a tax measure that they thought would suit. The government has now changed the rules and punitively taxed them. This measure is intended to redress that.