Mr. Speaker, I have noticed in discussions about security certificates that we unfortunately use a misnomer. The majority of individuals who discuss this matter, which is very complex and is covered by various texts that are very poorly written, quickly initiate debates that do not reflect the true nature of a security certificate.
I have to admit that I have not found a better term for them; however, we should understand that security certificates are part of a process whereby two ministers, who deem that a foreign national—but never a Canadian citizen—represents a danger to Canada, ask the Federal Court to issue a removal order. The objective of the process initiated by what are known as security certificates is to obtain a quasi-judicial court authorization to have the individual deported. We must remember that this is a deportation procedure and not a trial.
Canadians' right to live in and to return to Canada is entrenched in the Charter and applies to all Canadian citizens. This process applies only to foreign nationals. Every nation recognizes that it is the right of sovereign countries to admit into their country, at its discretion, the individuals they want and to extradite those they do not want for whatever reason. In general, particularly in a country such as ours that was and continues to be built on immigration, those who are considered dangerous are extradited.
This information is generally obtained from security services that, we must be clear about this, are not police forces. The purpose of security services is to assess threats and to inform the government of these threats so that it may take action. By their very nature, security services begin with suspicions, hypotheses and investigations. They then elaborate scenarios of the most dangerous situations to advise the government of the decisions to be taken. They are not police officers.
When the police investigate a crime, they likely begin with hypotheses and lists of suspects. Sometimes the investigation reveals that some of the suspects did not commit the crime being investigated. Throughout the investigation, they carefully seek new evidence, collect and preserve that evidence, and proceed only once they are sure that the evidence will prove beyond a shadow of a doubt that the person believed to be guilty of a crime, is.
What people have to understand is that in this case, we are not talking about a trial. It is important to note that, as is the case in many countries that are not at all like us, authorities can decide not to ask a judge to review a decision concerning a person deemed dangerous on the basis of information provided to the Minister of Public Safety by security agencies.
In countries that are more like us, including the Commonwealth and western European countries in general, these cases go before a judge. Given that the goal is not to punish but to deport the accused, the burden of proof is not the same.
Many people have suggested that if there is proof that these people are dangerous, they should be convicted.
In some cases, if there is evidence that these people are dangerous and that they have committed a crime, the best solution is to accuse them of those crimes and try them in court. However, we are talking about individuals the government wants to deport, not punish.
The government frequently defends its position by saying that people who are incarcerated here are in a three-walled prison. However, for some people, the fourth wall of their prison is actually a cliff. If removed from that three-walled prison, they may be killed or deported to a country where they will be tortured. That applies to those who have been incarcerated here under security certificates. The others are deported.
There was a case this summer. The Parliamentary Secretary to the Minister of Public Safety mentioned it in his speech. People might remember it. The individual involved had a lot of currency from various countries in his pockets. The security agencies, the ministers and the courts determined that he was dangerous, so he was deported. Those who are kept here are the ones who could be killed or subjected to cruel treatment if sent to another country, so we cannot send them anywhere.
Under these exceptional circumstances—and they remain exceptional—how long will an incarceration last? The government did not want to answer this question. The response given by the court indicated that, under the law, the incarceration or its grounds should be reviewed at least every six months.
Security certificates have rarely been used. However, since 9/11, that fear has emerged among security services. They concluded that some of these people had been sent to the United States and were leading a perfectly normal life, without having to maintain any contact with security organizations and that, one day, they were called and asked to participate in an operation. They were even convinced that many of those who had participated in that operation did not know exactly what they were going to do, but were willing to participate in an illegal or terrorist operation. This is what is known as a sleeper cell. And this fear of sleeper cells means that there is now a greater tendency to use security certificates than in the past.
Thus we are more aware of the limits of the current procedure and the underlying reasons. I must say that, personally, having read the reasons given by the judges, I am convinced that security certificates remain necessary for completely exceptional cases. However, our procedure must be consistent with our principles of law.
Of course, judges had to rule on this on their own. They themselves expressed some concerns regarding the procedure in place, in the absence of advocates. This concern was best expressed by Justice Hugessen. Here is what he had to say, in a speech that has been cited extensively in the case law:
I can tell you because we [the judges of the Federal Court] talked about it, we hate it. We do not like this process of having to sit alone hearing only one party and looking at the materials produced by only one party and having to try to figure out for ourselves what is wrong with the case that is being presented before us and having to try for ourselves to see how the witnesses that appear before us ought to be cross-examined. If there is one thing that I learned in my practice at the Bar... it is that good cross-examination requires really careful preparation and a good knowledge of your case. And by definition judges do not have that... We do not have any knowledge except what is given to us and when it is given to us by only one party we are not well-suited to test the materials that are put before us.
Judges did not like having to make such a decision on their own.
In my opinion, the bill tabled by the government does much to remove the unease of judges, but does not pay the same attention to the pursuit of fairness in this process as did the judges.
For example, there are only a bare minimum of guidelines for the creation of the new position of special advocate and also with regard to the issue of appeals. An appeal will only be allowed if the judge, having heard the government's and the special advocate's representations, upholds the order for removal or incarceration. If the individual cannot be deported, there can only be an appeal on a question of law or general interest raised by the judge.
It is definitely not very reassuring for the person involved to know that the individual who confirms his deportation is also the one who prepares the notice of appeal. I do not understand why the government went so far. A similar burden does not exist anywhere else in our laws. Even when the Crown can appeal only on a question of law, it is still the crown attorneys who prepare the notice of appeal.
In my opinion, the government should have taken the opportunity to carry out an in-depth review of the security certificate process. It should also have taken into account the experiences of special advocates in other countries such as Australia, New Zealand and England. It should also have considered our own experience with special advocates, those who represent certain individuals who file complaints against the activities of our Canadian security services.
The member who spoke before me rightly pointed out that these advocates can remain in contact with the individual who files a complaint, who complains about the security services. They are given secret information and there has never been a complaint that these advocates have communicated these secrets to the plaintiff.
In the French text of the bill, “special advocate” has been translated as “défenseur” or defender. That is an absolutely inappropriate title. The special advocate is not a defender. It is also important to realize that he is not required to maintain the solicitor-client privilege. I do not understand why that is not the case. That means that the individual involved may wonder whether admissions he makes to the advocate, who meets with him to explain his case, may be used against him.
I see no point in eliminating the requirement that the special advocate must keep secret any information shared in confidence by the individual in question. It is difficult to say what the defence will be, because he is not there to defend. He is there to give another point of view.
I also think we should have answered the question left hanging by the court: how long will we hold these people without any proof that they committed a crime? There is no evidence that they conspired to commit a crime. In fact, if they had conspired to commit a crime, the solution would be to charge them and bring them before the courts. All we have are reasons to believe they were here to commit a terrorist act at some point.
For how long? The six months will become another six months, and another. Are we looking at 10 years, 20 years? Some individuals have already been held as long as eight years.
I have a feeling that with the bill before us, the government is looking to do the minimum of what the court is asking. In so doing, it has taken a huge risk. I am absolutely sure that sooner or later the issue will once again end up before the Supreme Court. Furthermore, the Supreme Court may well feel that the measures taken are insufficient and that some aspects are still unconstitutional. Even if that is not the case, we should remember that the Charter of Rights and Freedoms is a charter of fundamental rights. In a country like ours, we surely want our citizens to have more than fundamental rights. For example, with respect to procedural fairness, in a hearing with the potential for incarceration, indefinite incarceration is one of the worst sentences. Even worse is the sentence for murder.
So, we could make a series of amendments without the risk of revealing any secrets of security agencies that should not be revealed. As well, the law does not achieve its goal of deporting from Canada foreign nationals who truly are security risks.
We therefore intend to support the bill in principle.
The government is right when it says that we have to respond to the Charkaoui case. We must respond to the Supreme Court order to improve the process, but we should take the opportunity to make sure this bill does not need to be amended in four or five years. The government should be humble enough to recognize that its proposal is not perfect and that, in a democracy, parliamentary debate is essential to achieve a balance. What we are looking for is a balance between the need for security and respect for the values of procedural fairness.
We are therefore going to propose several amendments. The speaker who preceded me represents a party that used to be in power and used these security certificates. This member suggested several amendments. The fact that this party used these certificates in the past shows that these improvements do not pose a threat to security.
All evidence obtained through torture should clearly be eliminated, and the bill should stipulate that a special advocate's relationship with the person is protected by solicitor-client privilege. The person should be able to choose an advocate with a security status from the Department of Justice list.
The French term “défenseur” should be corrected, because it is not only inappropriate, but misleading. As well, the decision is so important—individuals who cannot be deported to a country where they do not risk the death penalty or torture will be incarcerated indefinitely—that the burden of proof must also be important. The judge must be convinced beyond a reasonable doubt. Special advocates should have the necessary resources to carry out their duties. As well, they should be entitled to all the information concerning the individual, not just some of the information.
The right of appeal should also be extended.
We could improve this bill and pass it quickly, which is what the government wants.