39th PARLIAMENT, 2nd SESSION
EDITED HANSARD • NUMBER 019
CONTENTS
Monday, November 19, 2007

Immigration and Refugee Protection Act

Mr. Ed Komarnicki (Parliamentary Secretary to the Minister of Citizenship and Immigration, CPC):

Mr. Speaker, I am pleased today to lend my voice to this important debate. Bill C-3 has wide-ranging implications for both our immigration and refugee protection system and ability to protect our national security.

Once again Canada is taking a lead in this area. As my hon. colleagues have already mentioned, the reason for the bill is quite straightforward. The government has the fundamental responsibility to defend Canadian public safety and national security. This is first and foremost. We know we must have the tools needed to protect Canadians. Our safety and security are paramount.

At the same time, we recognize that these tools must protect the Canadian core values of freedom, democracy, human rights and the rule of law. Therefore, artful balance must be struck and I believe the bill strikes that balance.

Protecting national security means securing our quality of life. As well, securing our quality of life also means respecting the rights of all people in Canada. Indeed, as a delicate balance, we must protect our national security and individual safety with such minimal interference with personal freedom and rights as is reasonably possible under the circumstances.

Advancing security and civil liberties together with the other is a crucial element to building a strong and open society in Canada. That is why we have introduced Bill C-3.

The Supreme Court of Canada in its ruling recognized the government's responsibility for protecting Canadians from terrorists and other non-citizens who posed serious threats and the use of security certificates as a means of achieving this objective. As well, it ruled that changes were needed to the security certificate process to better protect the rights of individuals subject to these certificates.

While the Supreme Court provided the government with a great deal of insight into this matter and laid out possible options for action, the government was also privileged to be able to rely on the work of the parliamentary committees who studied this issue.

At this time I will address the recommendation made by the Standing Committee on Citizenship and Immigration during its study of detention centres and security certificates. I personally had the opportunity to visit the detention centre in Kingston. I spoke to and listened to the detainees and the concerns they had.

In the recommendation by the Standing Committee on Citizenship and Immigration, the committee recommended that the government comply with the Supreme Court of Canada ruling in Charkaoui v. Canada and amend the act to provide for the appointment of a special advocate in proceedings in Federal Court to determine the reasonableness of a security certificate. That is exactly what the bill purports to do.

The second recommendation was that a special advocate should be a lawyer with appropriate security clearance who would be appointed to represent the interests of the individual subject to the certificate and to test the confidential or secret evidence presented by the government, and the bill provides for that.

Finally, it said that the special advocate process put into place should, subject to national security considerations and with minimal impairment to the rights of the detainees, afford detainees an opportunity to meet the case against them by being informed of that case and being allowed to question or counter it. Again, the bill purports to do that.

The committee also recommended that the government institute a policy stating that charges under the Criminal Code would be the preferred method of dealing with permanent residents or foreign nationals who were suspected of participating and contributing to or facilitating terrorist activities. However, there is a difference between a criminal act and the intention necessary to make that act criminal and someone who is not yet in that stage who will be a potential danger to the safety or the national security or to individuals. Therefore, the two acts need to be dealt independently of each other.

I will try to address this in some detail and explain why the security certificate process is vital for the safety of all Canadians.

First, the security certificate process is necessary to protect Canadians from individuals who are inadmissible to Canada. Let me give a brief description of the security certificate process. The process has existed for more than 20 years in the Immigration and Refugee Protection Act and in other acts.

Since 1991 and contrary to what some members of the House may try to indicate, only 28 certificates have been used. Of those, there are currently six active cases. Nineteen individuals have been deported from Canada and three certificates were found not to be reasonable by the federal court. These statistics show that the process has been used relatively and frequently and only on a when needed as needed basis.

When we consider that Canada admits roughly 95 million people a year into the country, including 260,000 immigrants, it is plain to see that this process is very seldom used, and only in exceptional circumstances and in the rarest of cases.

A security certificate can only be issued against a foreign national or a permanent resident who is inadmissible to Canada on grounds of security, violating human or international rights, serious criminality or organized criminality. We are not talking about a Sunday school variety of misdemeanours. We are talking about serious matters, violating human or international rights, serious criminality or organized criminality. This is the group and category of persons we are talking about.

These certificates are only used when the information used to determine the person's admissibility to Canada is classified and needs to be protected for reasons of national security or the safety of any person. At some point, national security and the safety of the person must trump individual rights, but in such a manner that least interferes with this. That is the idea behind the bill.

Individuals who are inadmissible to Canada for other reasons are subject to removal order, but in most of these cases it has not been necessary to use confidential information. To protect that information from public disclosure in order to protect the safety and security of Canadians, these individuals are not subject to the security certificate process as their cases do not involve sensitive security information. Therefore, in the majority, and by and large in many of the cases, a full disclosure is made and this issue does not even arise.

As a first step in the security certificate process, the Minister of Public Safety and the Minister of Citizenship and Immigration review the case based on information presented to them, including the classified intelligence information. Both ministers must sign the certificate for it to proceed. It is not done without regard to what is before them. It takes two ministers, and following that, the certificate is referred to a designated judge of the federal court to conduct a hearing to determine whether the certificate is reasonable. This, in and of itself, provides a measure of protection to the individual, but other safeguards are put in place as well.

During these court proceedings the federal government may present classified information for the judge's consideration. This information is not disclosed to the individuals concerned or their counsel. However, an unclassified summary is given to the subject by the court in order to allow the individuals to be reasonably informed of the circumstances giving rise to the certificate. This contains a fairly detailed explanation of the case an individual must meet or answer to. If the judge determines the step is reasonable, it becomes a removal order.

During the reasonableness hearing or after the certificate is found to be reasonable, the federal court generally undertakes a risk and danger assessment to determine if the person can be removed from Canada. This is to verify whether the person would likely face torture or other cruel or unusual treatment if returned to the country of origin. This type of determination is also subject to review by the federal court, and Canada has never knowingly removed individuals who face a substantial risk of torture.

As hon. members can see, many people review the case and great care is taken in reaching a decision to invoke the security certificate process or not, and to ensure its integrity.

In its February ruling in the Charkaoui case, the Supreme Court of Canada stated some aspects of the security certificate process had to be strengthened to provide those subject to security certificates a greater opportunity to challenge the government's case.

Today I will explain for hon. members the reason for this process provided for in the Immigration Refugee Protection Act when it is invoked and why it is invoked rather than the provisions of the Criminal Code when dealing with specific cases. It is my hope this will help hon. members understand the crucial need for this legislation and the importance of voting in favour of Bill C-3.
The security certificate process does not have the same objectives as the criminal prosecution.
Let me state at the outset that under no circumstances should immigration proceedings and criminal justice proceedings be seen as an alternative to each other. Each exists for a specific purpose and its procedures have evolved over time as appropriate to that case.

Criminal proceedings seek to convict, and if a conviction is obtained, should apply a punitive sentence as decided by the court. That is when a crime is alleged to have been committed or when a series of actions or intentions breaches an existing law in Canada. In some cases, individuals may not have progressed to that stage, nonetheless they are a threat to our national security or the safety of a person.
While the security certificate process is meant to remove inadmissible individuals from Canada, it has no punitive design. Decisions on whether to prosecute a case criminally or to seek removal from Canada should be made on a case by case basis. There should never be a presumption as to which avenue should be pursued.

Every decision must be taken after independent evaluation of the facts, the circumstances and the context. As I have already said, the basis for proceeding with the security certificate process under the Immigration and Refugee Protection Act is whether the person is admissible to Canada and therefore subject to further removal. In this case, it must involve sensitive information that cannot be disclosed for national security reasons or to protect the safety of other persons.

Again let me stress that these cases refer to individuals who are somehow involved with terrorism, organized or serious criminality, or violating human or international rights. This process is not invoked for just anyone who is found to be inadmissible to Canada.

On the other hand, the only basis in which criminal proceedings are conducted is when, following an independent investigation by the police, a review of the evidence shows that there is a reasonable prospect of conviction and that to the prosecution, it is in the public interest to proceed with the charge. The decision to prosecute or not is within the independent jurisdiction of that prosecutor and the issues involved in the concern are different in both cases.

Another difference between the two lies in the rights and safeguards that apply to each. The government believes it would not be appropriate to select one type of proceeding over the other in order to ensure whether the particular charter provisions or other safeguards will or will not apply.

Certain rights, such as the right to be presumed innocent or to trial by jury, for example, are appropriate only in criminal proceedings, while others, such as a fair hearing, have a more general application. Any question of which rights or safeguards should apply should be based on the nature of the proceeding at hand. The government believes the nature of the proceedings must ultimately be governed by the facts and context of each case.

With respect to the security certificate process itself, we have an impartial judge who hears the case and there is provision for adversarial process. This last point is enhanced by introducing the special advocate in the proceedings as is proposed in the bill.

As the hon. members can see, each system serves a distinct fundamental purpose. The government believes the two should not be confused or seen as interchangeable and it would not be appropriate to select one type of proceeding over the other.

Let me say what the bill does.

It allows a special advocate to protect a person's interest in certain proceedings when the evidence is heard in the absence of the public and of the persons and their counsel. The special advocate may challenge the claim made by the minister of public safety and emergency preparedness as to the confidentiality of the evidence as well as the relevance of the evidence, the reliability of the evidence, the sufficiency and weight of the evidence and may make submissions, cross-examine witnesses and with the judge's authorization, exercise any other powers necessary to protect the person's interest.

That is the vast extension of what was in the previous act. It allows to test, to weigh, to cross-examine and to deal with the evidence, as a lawyer would in any normal case. It also allows for a judge to intervene.
Another difference I would like to discuss is the detention aspect of the security certificate process as it is different compared to incarceration in the context of the criminal justice system. Incarceration imposed as a criminal sentence is meant as a punishment and also as a rehabilitative tool. This type of punishment is applied to facts established at the time of conviction and is based on sentencing principles which include, for example, proportionality between the length of imprisonment and the seriousness of the crime.
On the other hand, detention pending removal is based on periodic assessment of risk to the public for national security. This is not a punitive measure and it does not serve a rehabilitative purpose. In other words, the persons are kept in detention just until they leave the country. The objective is removal from Canada. The fact is that individuals subject to security certificates are free to leave Canada at any time and to return to their country of origin.

In its decision in Charkaoui, the Supreme Court reaffirmed the appropriateness of detention under our immigration law including, where necessary, detention for extended periods. More specifically, the court stated that extended periods of incarceration do not infringe on the Charter of Rights and Freedoms, provided that process allows for a regular review and a consideration of factors related to each individual case.

The applicable charter safeguards and requirements for robust and regular reviews of detention have now been clarified by the Supreme Court in its decision and these requirements will be met and they will be met by this bill.

Bill C-3 enshrines that foreign nationals will be granted the same rights to detention review as permanent residents, that is to say, within 48 hours of the initial arrest and at least every six months thereafter. I think Canada leads the way when compared to other countries in this regard. While the security certificate process is seldom used, it is an absolute vital national security tool that we need to have available.

I previously mentioned some statistics that proved just how sparingly this process is evoked in Canada. Of the millions of people who have been admitted to Canada, only a few people have been subject to security certificates.

The infrequent use of this process does not in any way mean that it is not necessary as a tool in our national security efforts. In no way should we be complacent enough to think that we can handle these cases in another way. The Supreme Court confirmed the use of security certificates generally and recognized that one of the most fundamental responsibilities of a government is to ensure the security and protection of its citizens. That is paramount.

In fact, by delaying the coming into force of its ruling by one year, the Supreme Court was giving the federal government and ultimately Parliament an opportunity to amend the law to be able to maintain security certificates as a public safety tool, and so we have done that.

Time is growing short for us to amend the legislation. If Bill C-3 were not passed by Parliament before February 2008, the current legislation would be struck down. Individuals subject to a security certificate would no doubt succeed on application in having their certificates quashed. This means they would no longer be subject to detention or any conditions of release, which would pose serious public safety risks and we would lose security certificates as a tool to help keep us safe and secure.

There is an important need for security certificates and their process. While some hon. members may believe that we are able to effectively deal with these cases through criminal prosecution, that is simply not the case because they are entirely two different and distinct matters.

I hope this explanation today of the role of criminal prosecutions will help guide hon. members in voting in favour of this bill. Security certificates and criminal prosecution do not have the same goals, the same processes or the same outcomes. They cannot be interchanged.

We must continue to have the ability to remove from our country inadmissible persons who pose a grave and severe threat to Canadians. Whether it is a foreign spy, a terrorist, a member of a violent organized crime group or a person who has committed heinous human rights atrocities overseas, these people cannot and they must not be allowed to stay in Canada. It would be like closing the barn gate after the horses have left. We do not do that. We do not leave the gate open. We have to be gatekeepers.

Bill C-3 will allow us to continue to defend our society from such threats and they are significant. I encourage hon. members to show that they are serious about protecting Canadians from any individual posing threats and that they would vote in favour of this bill.
I would reiterate that the bill itself has presented a series of protections that I think provide the safety needed to the individual without comprising national security.
The special advocate's role is to protect the interests of the permanent resident or foreign national in a proceeding. That is what it is: to protect that interest. The special advocate can challenge the claim that there is a need for disclosure and confidentiality. The special advocate can challenge the relevancy, reliability and sufficiency of information or other evidence and the weight it should be given. The special advocate can make oral and written representations. The special advocate can cross-examine witnesses who testify with a judge's discretion and authorization and any other powers that are necessary to protect the interests of the permanent resident or foreign national and that covers a multitude of bases.

Ms. Denise Savoie (Victoria, NDP):

Mr. Speaker, I think we all agree that it is the government's responsibility to protect its citizens. Anyone who plots a terrorist act should be tried, convicted and punished, not simply, in our opinion, deported to another country. I wonder if the hon. member thinks that an accused should have the right to know and to examine evidence against him or her.

Mr. Ed Komarnicki:

Mr. Speaker, again, the member is attempting to confuse a criminal proceeding with an immigration proceeding. In an immigration proceeding, it is to protect the country from individuals coming to the country who pose a threat to the country.

In a criminal proceeding, what we have is someone who is charged, or intended to be charged, with committing a crime, committing a specific act against the legislature. Those do not have the security interests that are exhibited in a case of foreign nationals wanting to coming to Canada. They are entitled, in fact, to leave at any time they want to. They are just not entitled to come here if there is serious criminality involved, and if there is a threat to security, or terrorism in that area.

However, having said that, the special advocate would balance the rights of the individual to have information regarding his or her case and the ability to address it. That special advocate can test the evidence, can weigh the evidence, can cross-examine witnesses, can argue before the court as to whether or not that information should be kept confidential or not. I would presume that counsel, the ministers of the government of the day and a federal court judge, would have a better sense of coming to the conclusion that that must be kept out of the public eye more so than the individual himself or herself who obviously is the subject that proposes the threat to the country.

It is a balance, and I appreciate that, but it is a balance that allows, with a unique stratagem, the individual to know the case that is put forth, to examine and test it within the confines of that limit, and to protect personal interests but without trumping national security.

Hon. Andrew Telegdi (Kitchener—Waterloo, Lib.):

Mr. Speaker, listening to the parliamentary secretary and listening to quite a bit of debate on this issue, as well as the anti-terrorism bill, I am reminded of what it must have been like back during the time of the first world war and the time of the second world war because for national security we interned people from the Austro-Hungarian empire, we interned many people of Ukrainian descent, and of course during the second world war, we interned Italians, Japanese-Canadians, and the list goes on and on, all done in the name of security.

As members know, we have settled with Japanese-Canadians to make up for the injustices of the past and we have done some with Ukrainian-Canadians as well.

It seems to me that the parliamentary secretary should answer this question. He often says it is an immigration act when we keep people in custody indefinitely and they have a Hobson's choice: If they go back to the country they came from, they might be tortured or killed. Then of course he differentiates it from the Criminal Code where we actually have proof and give people the right to appeal before we can lock them up for a long period of time. Surely the member sees the contradiction in those two approaches. I would appreciate his response.

Mr. Ed Komarnicki:

Mr. Speaker, precisely. We talked about the Hungarians in the dark moments in history. When the Ukrainian-Canadians were interned, this procedure was not in place and they were not subject to it. Had they been subject to this procedure, that would not have happened.

First, the Minister of Citizenship and Immigration and the Minister of Public Safety has a look at the information and the evidence to be sure the case should go forward.

Second, we have a federal court judge who looks at the matters to ensure they are not superfluous, not whimsical. They have to be substantial and they have to be with respect to the safety of our country, with respect to someone endangering the safety of our national security. This is not done at a whim. If we had this kind of process in place, that would not have happened.

This process allows the council to intercede on behalf of the individual to make a case for that individual to ensure there is a perfect balance in the end so the individual is protected. There are measures there where the judge can allow a fairly significant type of procedure to take place for the special advocate, including the kinds of things we would do in a criminal trial, like cross-examination of a witness, testing the evidence and dealing with the weight and the sufficiency of the evidence, the kinds of things that would ensure this is proved, that it is real.

In terms of the distinction between criminal proceedings and these proceedings, I thought I adequately addressed that in my initial speech, but there is a difference.

Immigration and Refugee Protection Act
The House resumed consideration of the motion that Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, be read the second time and referred to a committee.

The Speaker:

When the debate was interrupted by proceedings at 2 o'clock, the hon. Parliamentary Secretary to the Minister of Citizenship and Immigration had the floor for questions and comments consequent upon his speech. I guess he is rising in response to the previous question or comment.

Mr. Ed Komarnicki (Parliamentary Secretary to the Minister of Citizenship and Immigration, CPC):

Mr. Speaker, there was a two part question. I answered the first part but not the second part. I would like to answer the second part of the question raised by the hon. member for Kitchener—Waterloo. I believe the second part was his concern that a foreign national may be held indefinitely under a security certificate indefinitely whereas someone charged under the Criminal Code for a Criminal Code offence would serve a time specific.

It points out the very essence of the distinction between the two. In the matter of the Criminal Code, the charge is for a criminal act that has been committed and the sentence is proportional to the type of act committed and the length of time that is appropriate to be served for that crime. It is unlike the issue we are dealing with here, which is national security and the admissibility of a person into Canada. A foreign national is not admitted to Canada if there is a security risk, if the person is part of organized crime or a terrorist, or there is evidence to believe that.

The foreign national, although not allowed into the country, can leave at any time. The only reason for detention is to protect the safety and security of the public. It is not a punitive measure. It is not something that is definite in time. Having said that, the bill provides for the person to be brought before a Federal Court judge within 48 hours and if there is a detention order because of a public safety and security issue, that is reviewed every six months and for as long as the person is in detention, but the person is free to leave at any time.

That is a very significant distinction. If there is another way to protect the safety and security of the country, the judge is able to release those on certain conditions, as has happened in many cases. They are restrictive. They need to be restrictive because the first and paramount interest is the safety and security of Canadians. That is the difference, that is the distinction and that is why the bill must pass.
Mr. Dean Del Mastro (Peterborough, CPC):
Mr. Speaker, I enjoyed listening to the member's comments on the bill. I think the bill is wholly reasonable. I entirely agree with the member that the safety of Canadians needs to be the paramount concern of any government.

Perhaps the member could underline how this proposed legislation implements the Supreme Court of Canada decision regarding the reviews of the reasons for continuing to detain individuals. How have we addressed the Supreme Court of Canada's concerns?

Mr. Ed Komarnicki:

First and foremost, be assured that there is a review, Mr. Speaker, of any detentions every six months and on an ongoing basis.

More important, there was a suggestion that there needed to be something in the nature of a special advocate. This bill provides for a special advocate who is security cleared and will have some experience in matters like this, who is able to probe the evidence, who is able to look at the material to see whether it should be confidential or not, or whether there are issues about bringing it in the public or not. The special advocate would be allowed to cross-examine witnesses, to probe the evidence that the minister has put forth. This bill underscores the idea of protecting the person's interest as much as is possible with regard to the fact that the security of the nation and the security of Canadians is paramount.

It sets out the parameters of how this might work. Then it adds a particular clause which states that the special advocate may exercise with the judge's authorization any other powers that are necessary to protect the interest of the permanent resident or foreign national.

It certainly indicates very specifically what can be done. It also says that in a challenge of the minister's claim that disclosure of information or other evidence would be injurious to national security, the special advocate can challenge the relevance, the reliability, the sufficiency of information or other evidence and the weight to be given to it. He or she may make oral or written submissions with respect to the information and other evidence that is provided and may participate in and cross-examine the witnesses who testified during any part of the proceeding that is being held.

That sounds very much like what we have in an ordinary courtroom in a criminal proceeding. It is the type of thing that is meant to protect the person's interest to the degree that it can be protected, given the circumstances that we find ourselves in.

TOP