Mario Silva

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

Mr. Speaker, whether it will meet the test of the courts, specifically the Supreme Court, we still do not know. We need to have that type of information before the committee and this House.

The great thing about our parliamentary system is that we do not adopt laws in one day. It is a slow process and I know the process frustrates some people but there are some beneficial aspects that come out of it. One of them is that we can look at legislation, speak to the different stakeholders out there, the different community groups that have issues of concern, and the legal experts and then make the decisions and, if necessary, amendments at the committee. At the committee stage we have the ability to hear witnesses, make proper amendments and then come before this House for a third vote.

We also have a situation where we have a second chamber in this House. The Senate also plays a major role in terms of looking at legislation and seeing whether it is charter compliant.

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

Mr. Speaker, I commend my hon. colleague for his work on human rights because I know he deeply cares about human rights.

Part of what I was trying to state in this debate is that I have serious concerns, as do many people who are involved in human rights. Many organizations, from Amnesty International to others, have raised concerns and alarm bells. We want to ensure that whatever legislation we bring forward is charter compliant. We heard from the Supreme Court that there were issues of concern in the legislation that was brought before this House in years past.

One positive thing I have seen come forward from this is the role of the special advocate. It is something that the United Kingdom also has in place, and I see it as a very favourable thing.

However, I must say that there are still some concerns with this legislation but, at the same time, I think it warrants going before the committee to at least have a discussion there so we can hear from the different witnesses who come forward, specific groups that are involved in human rights, and then let us make our decision when it comes before this House at third reading.

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

Mr. Speaker, before I begin my remarks I first would like to mention that I will be splitting my time with my hon. colleague, the member for Don Valley East.

I am pleased to join my colleagues in the House in discussing a very important piece of legislation that has been brought before us for our consideration.

Most people, on hearing the name of Bill C-3, An Act to amend the Immigration and Refugee Protection Act, may think it deals with immigration policy, but in many respects this is a security bill. This proposed law of course deals with security certificates and, in particular, the issues that arise out of the February 23, 2007 Supreme Court of Canada decision.

The reality is, as has been stated a number of times by various members, that if new legislation is not passed by this House to address concerns raised in the February 2007 Supreme Court decision, then the security certificate process will effectively terminate, so this is indeed an important debate.

The security certificate process itself has been in existence for approximately 20 years. In fact, a variation can be found as far back as the 1960s, when it was utilized to remove from Canada an organized crime figure.

Since 1991 we have seen in this country the use of security certificates 28 times. Since 2001, a pivotal mark, of course, in the history of anti-terror initiatives, the Canadian government has issued six security certificates. The system most notably has been amended twice, once in 1991 and again in 2001.

The whole security certificate system does represent a contentious process that has over the years created as many critics, it seems, as supporters. Among those that have opposed the system are the Canadian Bar Association, Amnesty International and Human Rights Watch.

Internationally, Canada also has come under criticism for its security certificate system from the United Nations Committee Against Torture, the United Nations Working Group on Arbitrary Detention and the United Nations Human Rights Committee.

Notable Canadians such as former solicitor general Warren Allmand and former foreign affairs minister Flora MacDonald have also expressed opposition to the security certificate system.

At the same time, there has been support for the system both from Canadians at large and from successive Canadian governments that identified the security certificate system as an important and indispensable tool to deal with individuals who represent terror, crime or human rights threats to Canada.

It should be noted that an earlier court challenge to the security certificate system resulted in the December 10, 2004 decision by the Federal Court of Appeal that found the process constitutional. This, of course, remained the prevailing judicial ruling until June 2006, when arguments were made with respect to two individuals being held on security certificates.

The result of these June 2006 arguments before the Supreme Court of Canada was the judicial decision of February 23, 2007, which immediately changed some provisions of the security certificate system and required the government to amend the law within one year, that is, the court issued a suspended ruling with effect by February 2008.

Among the court's rulings with immediate effect was the decision to strike and effectively replace the provision that distinguished between refugee claimants or non-residents and those with permanent resident status.

The suspended ruling dealt with, of course, the fairness of the exclusionary provisions with regard to evidence being used to sustain the security certificate. This part of the Supreme Court of Canada ruling goes to the heart of the issues that the government has indicated it is trying to address with Bill C-3, which we are debating today.

We all know that the court essentially ruled that the absolute inaccessible nature of the evidence used to hold a person on a security certificate was inconsistent with sections 7, 9 and 10 of the Charter of Rights and Freedoms. The ruling is of significant consequence to Canadians.

The Charter of Rights and Freedoms represents for Canadians not only a document, but rather a depository of our national values and our traditions of freedom. When our highest court finds provisions of a law are incompatible with the charter, we are called to take note.

Essentially, Bill C-3 is designed to address the issue of secrecy with respect to evidence. The Supreme Court, in simple terms, found the total secrecy and inaccessibility of evidence used to hold a person under a security certificate to be egregious and in need of redress.

The bill, by creating the so-called advocate, has, as its purpose, the redress of the Supreme Court's concerns.

Under Bill C-3, the justice minister would create a list of advocates. These would be lawyers, as we understand it, with at least five years of relevant experience, have no conflict of interest and in possession of the appropriate security clearance. These advocates would have an opportunity to meet with their clients prior to reviewing the evidence using only the court summary that is not considered sensitive. Then they will have access to the evidence. Once this has taken place, they cannot reveal to their clients the contents of the evidence. They can make a judicial appeal based on their viewing of the evidence with respect to the contents but they cannot reveal its contents to their clients. This is, of course, a major departure from the traditional view of lawyer-client privilege.

The reality is that there remains a secrecy aspect of this process that still seems to challenge most conventional views of judicial fairness.

However, we need to remember that these situations are unique and rare. They apply only to non-Canadian citizens and there is judicial recourse, albeit limited in comparison to standard legal practices with which we are generally accustomed as citizens.

As a country, we are not alone in these challenges. The United Kingdom has undergone similar debates and challenges. In 2004, the House of Lords, or law lords, ruled against the system in place there that allowed for unlimited detention. The result, after much debate and angst within the political arena, was a significantly modified and much more limited system of non-traditional detention for potential terror and human rights suspects.

The question for us today as parliamentarians is not unlike that which has faced legislators in the United Kingdom and other traditional western democracies. What is the proper balance between fundamental human rights protections and the need to protect the state and its citizens from persons of risk and, in particular, non-citizens who seek to take up residence in Canada?

This is a fundamental question, a question that we will need to consider carefully over the next short period of time leading up to our vote on this matter.

We must tread carefully when we venture into the realm where fundamental legal rights need to be compromised or withheld. We must exercise caution when we make decisions that afford to our security services and the court's secrecy that we would normally consider inconsistent with the principles of our democracy and our judicial system.

However, over the coming days we as legislators will determine and finally vote upon the bill that is before us today.

Does the need for security of our state and of Canadians require the measures we are bringing forward into law? This is a question we will reflect upon as we prepare to vote on Bill C-3.

The world has changed. There are threats that would once have seemed inconceivable to us that now present themselves as real. Is Bill C-3 justified? Does the need for this kind of law outweigh the concerns?

I know all members of the House will ask, as I will, these important questions as they cast their vote in the very near future. Canadians expect no less than this from us and we must serve them well in this regard.

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

Mr. Speaker, I have been quite clear in my remarks that I do not believe in the abolition of the Senate. It is a very important institution that has served Canada well, but it needs reform.

I do not want to speak for the hon. member or for the premier of Ontario, Dalton McGuinty. My understanding is the premier stated that abolition should be only the last stage if the solution is election. I think he probably prefers to maintain the system as it is.

However, I am stating quite clearly that the Senate is important. I do not support the NDP position of abolition of the Senate. If a poll were done, I believe most Canadians would oppose the abolition of the Senate. I think they would understand that there is a need for an upper House, for the Senate to be part of the parliamentary system of our country.

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

Mr. Speaker, I would like to thank my colleague for his question.

The reality here in Canada is that we have always had two houses. We have to respect the fact that these two houses make up our country's Parliament. The Senate is an institution that plays an important role in our democracy and in our democratic system.

My colleague's question was about Senate reform. I am in favour of it. After all, we can change our system, but we cannot abolish the Senate. I am against abolishing the Senate because it plays a very important role in our country. Canada has always had two houses, both of them important, in its parliamentary system. I still support that system.

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

Mr. Speaker, one thing is very clear, and I think it is important that the member is also aware of it. We are not in favour of abolishing the Senate. As well, we have never threatened the Senate with abolition.

The approach that has been taken by both the Prime Minister and the government concerns me greatly. On one hand they are saying they want reform, but they are also saying they might also abolish it at the end. I think that is a wrong way of approaching the issue. I think we need an approach that builds on consensus, that in fact engages our provinces, engages our population, and then we can move forward.

The government is coming out from the very beginning saying that it is not happy with the Senate, as though somehow it is the Senate's fault that the composition is the way it is. It is in fact a constitutional issue. The senators have a role to play, but so do we have a role to play. I do not think we should be getting all the blame for the way the nature of the composition of the Senate is at the very moment.

The approach has to be one of collaboration, cooperation, and engagement, specifically with our provincial partners. By approaching it in that constructive way, I think we can get a lot further.

This is a very important institution in Canada. If we are going to mess around with it, if we are going to in fact alter and change it, then we need to do in a respectful way, not in a threatening way, saying basically, “Do it or we are going to abolish you”. I am totally opposed to that approach, and I think most members of my caucus are also opposed to that approach.

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

Mr. Speaker, there are few issues that conjure up more debate within Canadian political circles than Senate reform.

In fact, in 1874 and in 1909, only a few years after the proclamation of the British North America Act, there were calls for Senate reform. This country was only seven years old when the issue of Senate reform first materialized. Despite calls for Senate reforms in 1874 to the present day, the institution remains essentially unchanged since its inception in 1867.

In fact, the only material change of note that has taken was in 1965 and that was a change under the British North America Act respecting retirement age. It was Parliament alone at that time which introduced the retirement age of 75 years for Senators who had previously served for life. Parliament was able to do this exclusively without the need for approval from the provinces under section 91(1) of the British North America Act.

The reality is of course that the introduction of the new retirement age in 1965 was essentially reasonable and would have found no substantial opposition from the provinces, as it did not dramatically affect the reform or function of the Senate.

The fact that there has been only one relatively small change to the Senate since Confederation clearly suggests to any reasonable person that reform is necessary. The real challenge, of course, in the context of Canada's unique political realities, is how to bring about this change.

Let me clearly state without equivocation that I do support Senate reform and I do believe in an elected Senate.

The Senate was, as most of us know, created as an institution of sober second thought. It is a place where laws and policy can be debated in an atmosphere that is less politically charged through the very nature of how its membership is determined.

This place of sober second thought is an aspect of the Senate that we should endeavour to retain. Indeed, even the current Prime Minister agrees with this concept, or at least I hope he still does. He stated before a Senate committee in 2006, “Canada needs an upper house that provides sober — and effective — second thought”.

It is for this reason that I am particularly concerned when the Prime Minister and his government make statements that the Senate needs to be reformed as they dictate or they will support the goals of our colleagues in the other opposition parties who want outright abolition.

This position hardly demonstrates a government with solid commitments to principle. I believe we need to reform the Senate, along with other institutions of our democracy, in consultation with Canadians and their provincial governments.

Within the context of our Charter of Rights and Freedoms we should also look at rules governing the succession of our head of state, as enunciated by the British Act of Settlement, 1701. It may be recalled that I tabled a motion in this House about the Act of Succession that discriminates against Roman Catholics and violates our Charter of Rights and Freedoms.

Indeed, I share the belief of many observers and scholars that the amending formula as outlined in the Constitution Act of 1982 requires the consent of at least 50% of Canada's population and at least seven of our provinces before the kind of significant change being proposed is allowed to proceed.

In section 42 of the Constitution there are four specific exceptions to Parliament's right to exclusively amend the Constitution as it relates to the Senate. These are: first, the method of selection of senators; second, the powers of the Senate; third, the distribution of Senate seats; and, fourth, the residence qualifications of senators.

I believe that at the very least Bill C-19 violates if not the letter then certainly the spirit of the exceptions as outlined in the Constitution Act.

We know that the Prime Minister is proposing that there be a term limits for senators of eight years. We know that the Prime Minister wants to institute a somewhat complicated and indirect electoral process for senators that in the end would have him or her, or whoever is the prime minister of the day, choose from the list of those put forward by virtue of this electoral process.

One obvious concern about this electoral process immediately comes to mind. Should prime ministers be fortunate enough to form more than two majority governments, they would by virtue of the eight-year term limit have effectively chosen every single senator by the time they would leave office at the end of their third mandate. I believe this is a very serious and potential affront to the concept of a Senate of a sober second thought.

Yes, there will be electoral choices put forward by voters, but in essence the Prime Minister would have chosen from these lists and effectively determined the composition of the entire Senate should he or she last in office for more than two majority terms.

If a prime minister were to remain in office for a period of over two terms, would all members of the Senate be in the position to obey his or her orders? My point is simply that this is inconsistent with the role the Senate should be occupying in our parliamentary process.

We must also understand that Canada is a unique country born of unique realities that are reflected in our national institutions. The Senate is one of these with its unique characteristics.

How can the Prime Minister simply ignore provinces like Ontario and Quebec that have expressed concerns about his path forward? The founders of this country chose to have representation in the Senate which reflects the character and size of our regions. We did not choose for example the United States or Australian model or representation that ignores population size.

In the latter case of Australia, the region of Tasmania, with a population of 650,000 people, has the same senate representation as New South Wales with over 6 million people. This is not the experience that has or would serve Canada well.

We should also remember we have not for the most part witnessed the kind of interparliamentary confrontation between our upper and lower chambers that has for example been the British experience. Historians will tell us than in 1911 and subsequently in 1949 the parliament acts were passed in Britain to assert the power of the House of Commons over the House of Lords. This was as a result of the 1909 budgetary obstruction by the Conservative House of Lords against the Liberal House of Commons. At one point King Edward VII and his successor King George V were prepared to appoint hundreds of Liberal lords to resolve the issue. The Conservative House of Lords conceded and accepted the new reality.

My point is simply that we in Canada have for the most part had a productive relationship between the Senate and the House of Commons that has served Canadians well.

What we need is reform and not the Prime Minister's sword of Damocles which he tries to dangle over the Senate calling upon it to “accept my terms or be abolished”. As members may know from Greek mythology, the sword of Damocles hung by a single hair over its potential victim ready to drop at the first sign of refusal to comply. This is not the way to reform fundamental institutions like the Senate. It is not compatible with the consensus nature of our country's political heritage.

We do not have to repeat the troubled experience of past constitutional reform undertakings like the Victoria agreement, the Meech Lake accord or the Charlottetown accord. There is I believe a desire among Canadians for Senate reform. Indeed, poll after poll suggests this. Likewise, polls also indicate that Canadians do not want Senate abolition but rather Senate reform.

This leads me back to my original comments on this issue. Let us undertake real Senate reform. Let us consult Canadians and their provincial leaders. It is neither good constitutional policy nor is it consistent with our political traditions to push one version of Senate reform or else threaten abolition.

Let us have elected senators, let us have Senate reform, but let us make the changes in a manner that reflects Canada's history of consensus and that honours the traditions of our country's foundation and our nation's progress throughout history.

[Petitions, November 16th, 2007]

Mr. Speaker, I also have another petition. I stand today, united with my constituents in Davenport, as I table this petition.

The petitioners ask the government to put an end to politicking and seriously address the issues of handgun crimes. It is not enough to simply punish offenders after a life is taken. We must also prevent future tragedies from occurring.

They call upon the government to intervene with at risk youth by funding social programs. They call upon government to enforce better gun laws proven to make our citizens safer, not populist propaganda that has failed in the U.S. Finally, they call upon the government to ban handguns and create stricter gun control policies.

Let us be proactive and prevent these tragedies.

[Petitions, November 16th, 2007]

Mr. Speaker, I have the honour to present two petitions. The first petition calls upon the government to reinstate the cuts to the literacy program.

Literacy affects many adults. It is increasingly difficult for them to access resources when they need help and the programs are not there. Literacy lies at the root of many social issues. By investing in adult literacy programs, these programs aid Canadian adults to gain valuable skills essential to employment, which improves their economic well-being as well as that of the whole Canada.

[Pedro da Silva Recognition Act, November 16th, 2007]

moved for leave to introduce Bill C-477, An Act to recognize Pedro da Silva as Canada’s first officially commissioned letter carrier.

Mr. Speaker, I am pleased to table a bill entitled “an act to recognize Pedro da Silva as Canada's first officially commissioned letter carrier”.

The bill calls on the government to recognize the 55th anniversary of officially sponsored immigration to Canada and the many contributions made by the Portuguese-Canadian community. The bill also requests that the government take appropriate measures to designate a national park or monument in recognition of Pedro da Silva for his dedicated service as Canada's first official letter carrier.

Pedro da Silva, a Portuguese trapper and carter living in the colony of New France, was commissioned to transport letters from Quebec to Montreal in the early 1700s, a service he provided for the rest of his life. Historians also know that Portuguese descendants have had a strong presence in North America, dating back over 500 years. In fact, many names in Newfoundland have a Portuguese origin and this heritage is continuously growing from coast to coast to coast in Canada.

Canadians of Portuguese heritage have a lot of which to be proud. From world renowned artists such as Albert de Castro, Nelly Furtado, Shawn Desmond and Canadian Idol Brian Melo, to hockey players like Mike Ribeiro and to business, labour and legal professionals, the community continues to contribute to the socio-cultural fabric of our nation.

The bill bestows appropriate recognition for the contributions of the Portuguese Canadian community to Canada's development, heritage and progress.

(Motions deemed adopted, bill read the first time and printed)