Ujjal Dosanjh

[Immigration and Refugee Protection Act, November 19th, 2007]

Mr. Speaker, these kinds of issues are non-partisan issues. We are all working together to enhance the security and safety of Canadians.

In that spirit, if there are legitimate amendments, they can be made with speed. There are some that can be made without taking away from the strengths of the bill and those amendments would make the bill stronger and better for all concerned. However, we have an obligation to ensure that we do this by February 2008 if at all possible.

[Immigration and Refugee Protection Act, November 19th, 2007]

Mr. Speaker, obviously this is a bill that has been crafted by the government in response to the Charkaoui decision of the Supreme Court, where the Supreme Court ruled that the non-disclosure of evidence impaired the rights of the individual beyond the level of acceptability. Therefore, that provision was suspended by the Supreme Court until February 2008. The Supreme Court also addressed the differential treatment of the non-residents of Canada and permanent residents of Canada, and dealt with the issue of indefinite detention. This was a very important decision.

These provisions are very important. There is no question that for the safety and security of Canadians, sometimes a society like ours needs to deal with people who may come from other places and may have a history of which we may or may not be aware. At some point the state becomes aware, and we want to protect our society from violence and the like. Therefore, these provisions are important. The instructions that the Supreme Court also provided were very important. The bill in a very basic fashion deals with the concern expressed by the Supreme Court. I want to go over three or four elements of the Supreme Court's decision.

The Supreme Court looked at the various systems in place in Canada and in other parts of the world and came to the conclusion that we needed to change these provisions and that we could take any one of the systems or devise a system to provide some significant disclosure to the individual before the court. The government in this bill has imported, essentially holus-bolus, the concept of special advocate from the United Kingdom, which, I must add, has been the subject of some criticism by a joint committee of the Lords and Commons in the U.K. itself.

It is worth looking at in that light, because it might tell us that what the government has presented basically meets the concerns expressed by the Supreme Court, but does not deal with some of the other concerns. Let me say at the outset that we will support this bill at this stage so that it goes to committee, but while in the committee, I think that some amendments might improve this bill to make it better than it is.

The Supreme Court, in coming to its conclusion in the Charkaoui case, looked at the Security Intelligence Review Committee, SIRC as it is called in Canada, our own committee. The court looked at it favourably and said that the system that SIRC had devised in dealing with disclosure, and SIRC had full disclosure, and in dealing with the rights of the individual before it, served the natural justice interests of the individual before SIRC as well as maintained the confidentiality of the information.

SIRC has been in operation for many years. The experience in dealing with these very serious issues has been that there has never been a case of inadvertent disclosure of sensitive information either to the individual or to the outside world. This was one of the better approaches the government could have taken. Our homegrown system of SIRC could have been imported into a security certificate process, but the government did not go for that. Instead it went for the United Kingdom's special advocate system.

The Supreme Court then looked at the Canada Evidence Act procedure. Under the act a participant in a proceeding who is required to disclose or expects to disclose potentially sensitive information must notify the Attorney General of Canada about the potential disclosure. The Attorney General then may apply to the Federal Court for an order prohibiting that disclosure in total or in part. That process has something to commend itself.

The court looked at the Arar inquiry where there had been amicus curiae appointed on confidentiality applications and there was a scheme in place where the information was vetted and dealt with appropriately.

The court looked at the United Kingdom immigration commission system and the special advocate system. In this bill the government has imported some elements of that system. Unfortunately that system itself has come under a great deal of scrutiny and criticism by the various committees and experts in the U.K. as well as some special advocates in the U.K. In particular the House of Commons and House of Lords Joint Committee on Human Rights in its recent report in July of this year severely criticized the system.

Be that as it may, we have our own reports from the House and the Senate on some of these issues. While undertaking a mandated review of the Anti-Terrorism Act the committees pronounced on the security certificates as well. Both the House committee and the Senate committee found that there is a need for some form of adversarial challenge to governmental claims that secrecy is necessary and to the secret intelligence that is presented to the judge reviewing the security certificate. Both committees concluded that the affected party should be entitled to select a special advocate from a roster of security cleared counsel. One of the reports, I believe, proposed a panel of special counsel funded by, but independent of, the government.

Several other recommendations were made by the committees. They include, for instance, a proposal for amendments to ensure that the information that may be the product of torture not be admissible in the proceedings, that there be faster time lines for review of the detention of a foreign national being held under a security certificate, and that there be a right of appeal to the Federal Court of Appeal following the decision of reasonableness by the Federal Court judge.

The three items that I have mentioned have been touched upon and dealt with somewhat, but I might say not satisfactorily, in the bill that is before us today. Let me go through some of my concerns with respect to these issues.

On the issue of full disclosure, the bill provides for some disclosure, not for full disclosure, to the special advocate. There is no mechanism for the special advocate to know whether or not complete information or the complete file has been disclosed to the judge and therefore disclosed to the special advocate. There is no mechanism, and therefore there is no substance, on which the special advocate could go back to the judge to ask for more information because he or she would not know whether or not there is more information.

Whatever information is provided to the judge is then shared, based on the discretion of the judge, with the special advocate. However, the special advocate will not be able to go behind that information, nor would the judge, unless the judge knows that further information exists.

Therefore, while SIRC, the model that we have developed here in Canada and which is still being used, had full disclosure of the entire file, there is no guarantee in this bill that the judge who is sitting on the matter is going to ever have the full and complete file. The judge may, but there is no guarantee in the bill. That is a deficiency in this legislation.

There is the issue of continued access by the special advocate to the interested person. The bill provides that the special advocate will get a summary of the evidence, a digest of the evidence, at which point he or she can speak to the affected individual and then have full disclosure from the judge with respect to all of the material that might be available. Thereafter, the special advocate will not be allowed to communicate with the affected individual without the permission of the judge.

Our experience in SIRC tells us that with special security cleared counsel there has never been an inadvertent disclosure made by anybody to anyone. Our experience also tells us that if there is a process in place to properly security clear the special advocates, they ought to be given some leeway without necessarily having to apply to the judge every time they want to talk to the affected individual.

There is a provision in place for the special advocate to seek permission to further communicate with the individual, but by the very nature of the fact that one has to apply to the judge, it is a rather constrained and very limiting situation. That should be looked at, if at all possible. If there is a way to remedy and rectify that in the bill once it goes to committee, all parties should look at it. Ultimately the aim of all parliamentarians ought to be that we as a democratic and free country are able to provide the best designed system to deal with even the most difficult cases, such as the ones that come before these kinds of tribunals.

There is also the very real issue of the selection and support of special advocates. The bill is silent about how these special advocates are to be selected. There ought to be enshrined in the bill a system which guarantees a selection process for the special advocate or panel of special advocates which is independent and arm's length from the government. There are no such provisions in the bill.

There should also be enshrined in the bill a fund provided by, but independent of, the government that would fund the special advocates. This is so that the special advocates would not feel that they are acting at the behest of the government or ought to be somewhat concerned about what the government thinks because they are selected by the participation of the government in the first place, or they may have to be paid by the government from time to time. We need to put the selection process in the legislation at arm's length and independent of the government, perhaps with the participation of the Canadian bar and other NGOs, as well as a representative of the judiciary. That is important.

It is also important that we provide for an independent fund to be drawn on by the special advocates from time to time. It should be set up by the government but should be independent of the government.

Next, I believe it is important that the affected individual or individuals ought to be able to choose the special advocate of their liking out of the roster of security cleared individuals. I do not believe the judge ought to have a role in appointing the special advocate. There is some lack of clarity in the legislation.

I do not believe that anybody else ought to have the right to impose a particular special advocate on the affected individual who is before the judge. If the individual chooses not to exercise that right of choice in this situation, as happens before the courts normally, the court would appoint a special advocate from the roster. However, it should be clearly spelled out in the legislation that the affected individual has the right of choice of the special advocate from the pre-selected roster of special advocates.

This is a very important principle of our justice system where individuals are given a roster, although they have a limited choice. At least within that limited circumstance, they ought have the freedom to pick X or choose Y rather than having to be stuck with A or B because the judge or someone else might think so. That is very important.

I believe the relationship of the special advocate with the interested person is also very important. We recognize that we cannot have a special advocate in the relationship of solicitor-client with the affected individual, for obvious reasons. However, at the same time we ought to also protect the special advocate, in that he or she ought not owe a duty of confidentiality or a duty of disclosure to the government.

We recognize that a special advocate is not in a position of solicitor-client relationship. We do not want the special advocate to be in a position to have to disclose information that he or she could not disclose to the affected individual. However, we should also have a guarantee that the special advocate is not in a position to have to answer to the government and disclose information that he or she may have gathered from the affected individual in the communications he or she may have with that individual. This guarantee should work both ways. It is important to protect that right to silence, in a sense, of the affected individual, either directly or indirectly.

Finally, I come to the issue of torture evidence. We have in the bill a reference to the reliable or proper evidence, if I remember the words correctly and I will stand corrected. This is the kind of evidence the judge ought to accept for these kinds of hearings. There is no express bar against the use of evidence that is the product of torture or that may be the product of torture. I believe we can do better than what is in the bill.

One thing we can do is have an express bar against using the product of torture, evidence that may have been obtained by the use of torture anywhere in the world. We want to ensure we have a system of justice that is the envy of everyone in the world and we cannot claim that if we do not expressly bar the product of torture. We may indirectly do so by using the words such as “reliable” and “proper” evidence, but clearly evidence received pursuant to torture is improper, in my humble view, and ought never be used in these kinds of hearings where there is no guarantee of full disclosure even to the affected individual.

I recognize these are individuals whom we do not want on our soil. We may be threatened by them. We may be worried about our safety and that is why we are doing what we are to them. However, we have an obligation, based on the principles of justice in our country, to ensure that we do not fall into the kinds of traps other nations fall into where evidence received pursuant to—

[Immigration and Refugee Protection Act, November 19th, 2007]

Mr. Speaker, the hon. member has obviously explained the legislation. I have one question. The hon. member may have looked at all the recommendations of different committees, both the Senate and the House, as well as the UK committee. I believe the UK committee was a joint committee on justice. It expressed certain concerns about the special advocate system that is now being imported into our system.

Can the member tell us what particular recommendations of the various Senate and House committees from our jurisdiction the government has been able to embrace in the legislation and which ones it has not and why?

[Airbus, November 13th, 2007]

Mr. Speaker, sure they do not know what we are talking about.

Many members of the government have been friends and confidants of Brian Mulroney for decades. The defence minister owes one of his first jobs to Mr. Schreiber. The government leader in the Senate ruled as queen of Mulroney patronage and the justice minister was a secretary in the Mulroney government.

How can the Prime Minister expect Canadians to believe that no members of his government will have any direct or indirect contact with Brian Mulroney while the inquiry is under way?

[Airbus, November 13th, 2007]

Mr. Speaker, last Friday the Prime Minister ordered everyone in his Conservative government to have no further dealings with Brian Mulroney while the probe was being conducted. He would only have needed to make that order if Mr. Mulroney was currently engaged in dealing with the government.

As an unregistered lobbyist, what specific file is Mr. Mulroney involved in, with which ministers, on behalf of which clients, and would the public inquiry cover all of this?

[Canada Border Services Agency, October 31st, 2007]

Mr. Speaker, the security of our borders is a top priority and the government is not doing enough to ensure it. Twenty-one per cent of red flagged, highly dangerous people are getting into the country. Shipments and people deemed potentially dangerous are not being investigated or detained and once they are in the country, CBSA has no way of tracking them at all.

When will the minister take his responsibilities seriously and begin enforcing vigorously the laws of our country at the ports and borders?

[Canada Border Services Agency, October 31st, 2007]

Mr. Speaker, in a damning report on the Canada Border Services Agency, the Auditor General concluded that shipments of goods and people who had been deemed “high risk” had been entering the country without being detained at their primary point of entry. This is absolutely unacceptable. The government talks a good game, but its actions do not match its rhetoric.

Why did the Minister of Public Safety allow it to come to this? Why is he sleeping on the job?

[Afghanistan, June 12th, 2007]

Mr. Speaker, for over two months the official opposition has been asking questions in the House regarding the allegations of torture by the Afghan detainees. Yesterday, of course, the government came full circle in its stories with the Minister of Foreign Affairs suggesting that the Red Cross is involved in the investigation. It is not and the Red Cross said so the last time.

With the allegations of torture to be investigated by a system that is rife with corruption, will the minister guarantee a full, fair and independent investigation of the serious allegations of torture?

[Afghanistan, June 12th, 2007]

Mr. Speaker, yesterday the Minister of Foreign Affairs told us that his government is “working closely” with the Afghanistan Independent Human Rights Commission and the Red Cross regarding allegations of torture.

Under the detainee agreement, the Red Cross has no obligation to monitor detainees. The human rights commission is a paper tiger with no power to compel production of evidence. How can the Minister of Foreign Affairs expect an independent investigation by the Afghan government in a country full of corruption?

[Afghanistan, June 11th, 2007]

Mr. Speaker, as we have seen in the bungling on the detainee torture issue, no minister appears to be in charge of this file. We know from the foreign affairs department's own report that torture is all too common in Afghanistan and corruption is rampant in that country. TV stations are raided by the attorney general for being critical of him.

Under these circumstances, could the Prime Minister guarantee that detainee torture allegations will be vigorously and independently investigated?