Bill C-3: Undemocratic and unjust

In 2002, a public campaign against immigration security certificates (ss. 33 and 77-85 of the Immigration and Refugee Protection Act – IRPA) and in solidarity with security certificate detainees began to gather speed. Although security certificates have been around since the 1970’s in some form or other, in the context of the so-called war on terror, they have become the object of a debate of national importance which has spread from targeted communities and their allies to the broader public, media, NGOs, the legal and academic communities, and politicians.

Download PDF version of backgrounder.

Bill C-3 and the manner in which it is being rail-roaded through Parliament, is a wholly inadequate response to the important concerns that gave rise to the public debate.

We are asking members of Parliament to vote against Bill C-3.

BELOW:

1. Myths and errors
   1.1 Supreme court “deadline”
   1.2 “Prison with three walls”
   1.3 This is an “immigration issue”
2. Problems unaddressed
3. Reforms inadequate
   3.1 Special advocate
   3.2 Arrest and detention
   3.3 Torture information
   3.4 Right of appeal
4. Back to the Supreme Court?
5. Organizational and popular opposition
6. Chill effect

Annex 1. Excerpts from expert briefs and testimony on C-3

 

1. Myths and errors

In the face of strong public concern, certain arguments have been advanced publicly to justify C-3 and the pace at which it is being pushed through parliament. Here are responses to some of the confusions that have resulted.

1.1 “Supreme Court deadline” – a manufactured crisis

In February 2007, the Supreme Court released the Charkaoui decision, declaring the section of the law establishing the security certificate process to be unconstitutional. However, the Court suspended its judgement for one year, meaning that nothing has changed for those who are subject to this measure, even though the highest court in Canada has recognized that it is illegal.

The government waited until 22 October 2007 to introduce a new law. They then urged the necessity of pushing the law through Parliament at a pace allowing for no debate or opposition in order to “respect the Supreme Court’s deadline”. But the Supreme Court did not give the government a deadline – they merely suspended their judgement for one year.

This is a false emergency:

• The security of Canada will not be in jeopardy if there is no law in place by February 2008 and the current security certificate detainees apply for and obtain liberty; they have never been proven in any way to represent any sort of danger to anyone.

• The government will not be left without recourse if there is no law in place by February 2008; on the contrary, it has a battery of other laws it could deploy if there really were cases against any of the current security certificate detainees, starting with the Criminal Code.

1.2 “Prison with three walls” – in reality, a prison with four walls and no windows

The government has promoted the idea that the security certificate is a “prison with three walls”; claiming that the detainees are free to leave Canada at any time.

It is shameful that, after Maher Arar, any member of Parliament can pretend to believe this claim.

As the Ministers of Public Safety, Immigration and Justice are well aware, deporting any of these men under a Canadian-endorsed label of “suspected terrorist” means rights violations, torture or death. For example:

• As noted above, in Charkaoui’s case, Immigration Canada’s latest pre-removal risk assessment (PRRA), completed in 2007, evaluated Charkaoui to be at risk of cruel and unusual punishment, torture or death if deported to Morocco.

• In a decision rendered October 16, 2006 [2006 FC 1230], Justice MacKay of the Federal Court ruled that, “Mr. Jaballah faces a serious risk of torture or worse if he were removed to Egypt”.

• On December 14, 2006 [2006 FC 1503], Justice Tremblay-Lamer of the Federal Court found that there was overwhelming evidence that Mahjoub would face a very serious risk of torture if returned to Egypt, notwithstanding Egypt’s diplomatic assurances.

Moreover, all men currently under a security certificate have families and lives deeply established in Canada. For example, Charkaoui has lived in Canada since 1995. His parents, sister, wife and three children are here. Deportation would mean separation from families and homes. Forcing them to leave Canada is better understood as exile than deportation.

1.3 “This is an immigration issue”

If this is an immigration issue, then the government is intent on deporting people to torture, deliberately and consciously.

If the government is not serious about deporting people to torture, then it should not be using immigration law to pursue them. Immigration law should not be used to access lower legal standards to hold non-citizens in prison or under house arrest. C-3 re-establishes a two-tier system of justice, contrary to the principle of equality of every human being.

2. Problems not addressed

Remarkably, C-3 does not respond to any of the core concerns that led to the public campaign against security certificates.

Importantly, C-3 does not even attempt to address the fact that the security certificate maintains a two-speed system of justice: one for citizens; another, with lesser protections, for non-citizens. On the contrary, it reinforces and legitimizes this unjustifiable difference of treatment.

Under C-3, the basic process remains essentially unchanged:

• based on a recommendation by CSIS, two Ministers issue the security certificate declaring a non-citizen to be a suspected ‘danger to national security’ (77(1), 76);

• no precise charges are laid; the entire process and its outcomes take place on the basis of broad and vague allegations such as “may in the future be a danger to national security” (where ‘national security’, ‘danger’ and key terms such as “membership” are nowhere defined in the Act); more precise allegations, if they exist, may be kept secret;

• the person named in the certificate may, in practice, be arrested and detained in prison or under house arrest, indefinitely;

• the information used to justify issuing and evaluating the certificate, as well as detention and deportation, comes from domestic or foreign intelligence agencies: that is, it consists of hearsay, is as tenuous as CSIS assessments of foreign intelligence agencies’ assessments of informers’ unconfirmed allegations; it is admissable even if “even if it is inadmissible in a court of law” (83(1)(h)); it is speculative, unverifiable, and based on profiling; and it is selective (not fully disclosed by CSIS even to the judge);

• a Federal Court judge determines whether the certificate is ‘reasonable’ – very far from the criminal law standard of ‘beyond reasonable doubt’, this low standard effectively undermines the principle of innocent until proven guilty;

• on grounds of national security, information may be kept secret and hearings may be held in a closed session from which the named person and his lawyer are excluded;

• the judge may base his or her decision on secret information, not disclosed in any way (not even a summary) to the named person, his lawyer or the public (83(1)(i));

• the goal of the proceeding is to deport the person, even if he is at risk of cruel and unusual treatment, torture or death - the Canadian government’s position is that they may deport someone under the national security label even if they are at risk of torture. In Charkaoui’s case, Immigration Canada assessed in 2003 and again in 2007, that Charkaoui is at risk of cruel and unusual punishment, torture or death if he is deported – Canada nevertheless continues to try to deport him.

3. Reforms inadequate

Among the changes introduced by C-3: a ‘special advocate’; the possibility for earlier bail application for refugees; a change aimed at making information obtained under torture inadmissable; and a very limited appeal.

3.1 Special Advocate

The main change to the law proposed by the government is the introduction of a special advocate who has security clearance and can review the secret information. The special advocate is supposed to act as an advocate for the detainee, but is not their lawyer.

Simply adding in a special advocate obviously does nothing to address most of the problems enumerated in section 2 above. Moreover it does not even adequately address the problem of lack of disclosure:

3.1.1    No communication with the detainee

Once the special advocate has seen the secret evidence, they may not communicate with anybody about the proceeding, including the person named in the certificate, except with the authorization and subject to conditions determined by the judge (85.4(2)). Because special advocates cannot communicate with the person concerned once they have seen the secret evidence, they cannot check the accuracy of allegations: according to Lord Carlile of Berriew QC, appointed in the UK to review the functioning of a very similar system in the UK, “the special advocate has been unable to question the detainee or his lawyers on potentially important matters such as where the detainee was on a particular day, who were his associates, why he was seen to perform certain actions” (2004 review, submitted May 2005).

The Arar commission demonstrated, once again, that Canadian intelligence agencies can and do commit errors. In a recent incident in the Jaballah case, officials of the Ministry of Public Safety, in the process of arguing that tighter control measures should be applied around Mr. Jaballah’s house, presented the court with pictures of the wrong house (Globe and Mail, “Agency submits wrong evidence”, 5 December 2007). Only Mr. Jaballah’s presence in court ensured that the error was detected.

Secrecy protects errors - or manipulations - from detection. The special advocate does not correct this.

3.1.2    No right to legal counsel of one's choice

The special advocate under Bill C-3 would be chosen from a list of special advocates appointed by the Minister of Justice. The detainee would thus not have the right to chose his own defense. Under changes to Bill C-3 approved by the Standing Committee in December, the judge is instructed to take the detainee’s preference into account in making the appointment (83(1.2). However, this does not alter the fact that the choice of counsel does not ultimately lie with the detainee. The judge can also change the special advocate mid-way through the proceedings (83(2)).

3.1.3    Already tried and rejected in the UK

The government has chosen to introduce a system that has already been tried in the UK and failed miserably.

Ian MacDonald was a UK special advocate who resigned, writing that special advocates were used “to provide a fig leaf of respectability and a false legitimacy to indefinite detention without knowledge of the accusations being made and without any kind of criminal charge or trial”.

The Joint Committee on Human Rights of the UK House of Commons and House of Lords wrote in its July 2007 report:

• the special advocate system used for judicial supervision of control orders was “not just offensive to the basic principles of adversarial justice in which lawyers are steeped, but it is very much against basic notions of fair play as the lay public would understand them.” (par. 210)

• After questionning four senior Special Advocates, the Committee wrote: “we found their evidence most disquieting, as it portrayed a picture of a system in operation which is very far removed from what we would consider to be anything like a fair procedure. We were left in no doubt by their evidence that proceedings involving special advocates, as currently conducted, fail to afford a “substantial measure of procedural justice.” (par. 192)

3.1.4    Dangerous precedent

The special advocate model is dangerous because it provides a legitimate form to the use of secrecy by the state.
   
The introduction of a special advocate may lead to a greater use of secrecy within the Canadian legal system. Already, under C-3, the special advocate is extended to other Immigration law proceedings (those to which section 86 applies), potentially making the use of secrecy more politically palatable in admissibility hearings, detention reviews and appeals before the Immigration Appeal Division (if the latter is ever implemented).

State secrecy is an enemy of democracy and freedom, allowing government officials to act with impunity. Under Bill C-3, special advocates may not disclose secret information. If they become aware of wrong-doing or abuse committed under cover of secrecy, they would not able to report it. Thus the special advocate legitimates the use of secrecy but is impotent against its worst dangers.

3.2 Arrest and detention

Under the old law, only permanent residents were guaranteed a detention review within 48 hours of arrest and every six months thereafter. Others (e.g., refugees) could be detained without review for up to 120 days after the reasonableness of the certificate was confirmed. In Mohamed Harkat’s case, this meant over two years even before the certificate was upheld. In Hassan Almrei’s case it has meant detention since October 2001 and counting.

The Supreme Court found that this lengthy detention without review infringed on the guarantee against arbitrary detention (s. 9 of the Charter) and the right to prompt review of detention (s. 10(c) of the Charter).

Under C-3, all persons held under a security certificate would have the right to a detention review within 48 hours (82(1)), and at least once every six months thereafter (82(2) and (3)). That is, there will be no disctinction between refugees and permanent residents with respect to detention under the new law.

To put this improvement into perspective, the case of Charkaoui, the only Permanent Resident currently held under a security certificate, indicates what this could mean in practice. Under the system that will now apply to refugees, Charkaoui was subject to 22 months of imprisonment (from May 2003 to February 2005), and has ever since lived under severe conditions which deeply affect his entire family, all prior to any court review of the certificate.

3.3 Torture information

Under the old law, statements made under torture were submitted as information by CSIS. For example, information sourced to Abu Zubaydah, known to have been tortured in American custody, is still being used in the case of Charkaoui. With amendments introduced by the Standing Committee, information believed to have been obtained as a result of the use of torture is no longer admissable (83(1.1)).

Much as the reality which necessitated it is abhorrent, this addition is certainly an improvement. However, it is difficult to see how the prohibition could be assured in practice as long as CSIS obtains information from US and other foreign intelligence sources who use torture. SIRC, the oversight body of CSIS, wrote in its 2006 annual report of CSIS that the spy agency was in no position to make "an absolute assurance" that information it receives from allied spy agencies is not obtained as a result of torture. Moreover, while foreign intelligence agencies such as the CIA remain intent on covering their tracks to the point of destroying records, it will remain difficult to prove that torture has taken place.

3.4 Right of Appeal

Bill C-3 introduces an appeal on the determination, but only on certification by the Federal Court judge that a serious question of general importance is involved (79).

On the other hand, appeals on interlocutory decisions are now prohibited.

4. Back to the Supreme Court?

Several expert organizations have already stated that they do not believe that C-3 would even pass a constitutional test.

The Canadian Bar Association, the Quebec Bar Association, the Federation of Law Societies of Canada, the Muslim Lawyers’ Association of Canada, as well as Warren Allmand, former Solicitor-General of Canada and spokesperson for the International Civil Liberties Monitoring Group, have all told the Public Safety Committee that they believe C-3 is very probably still unconstitutional and could be successfully challenged.  (See their comments below, Annex 1.)

Both Mr. Charkaoui and Mr. Harkat have said they will be heading back into a constitutional challenge if C-3 is enacted and they are pursued under it. Several organizations, including the Canadian Arab Federation, have signalled their intent of supporting a constitutional challenge to C-3 if the bill passes. 

It is of enormous concern – touching on the rule of law in Canada - that Parliamentarians are considering enacting a law that top legal experts have said is unconstitutional.

5. Organizational and popular opposition

Amnesty International, Human Rights Watch, the International Civil Liberties Monitoring Group, the Canadian Arab Federation, CAIR-CAN, the Muslim Council of Montreal, the Canadian Bar Association, the Quebec Bar Association, the Federation of Law Societies of Canada, the Canadian Council for Refugees, the Ligue des droits et libertés, the BC Civil Liberties Monitoring Group, the Muslim Lawyers’ Association, the Refugee Lawyers Assocation of Ontario are among the many organizations that are opposing Bill C-3, several stating that they will support a new constitutional challenge and many taking the position that the government should repeal the security certificate and use criminal code to pursue such cases. (See Annex 1 below.)

Importantly, the families, detainees, grassroots groups and community organizations who have driven the popular campaign against security certificates have made it very clear that they will not stop their work until the certificate is scrapped and those under the certificate are treated with justice and dignity.

6. Chill effect

The existence and use of the security certificate, which relies on racist profiling of individuals and communities, has had a broad chill effect on targeted communities. People are afraid to involve themselves in political life, they do not express their religious or political opinions openly. An atmosphere of fear is pervasive in the most heavily targetted Muslim and Arab communities.

The Coalition Justice for Adil Charkaoui is a community response to the arrest of Adil Charkaoui in May 2003. Emerging from an alliance of Muslim groups, refugee and immigrant rights organizations, anti-oppression groups and the Charkaoui family, we work as part of a cross-Canada network of grassroots organizations.  We demand 1) the immediate release of all Security Certificate detainees, 2) a fair trial (if any case exists), 3) an end to deportation proceedings against the five, 4) the abolition of "security certificates", 5) an end to deportations to torture and 6) an end to the racist scape-goating of Muslim and Arab communities. The Coalition also demands the closure of "Guantanamo North", the high security prison that opened in April 2006, specifically for people under security certificates, further institutionalizing the illegal security certificate regime.

 
Annex I - Excerpts from expert and NGO briefs and testimony on C3
* Full documents and transcripts can be found at www.adilinfo.org

CANADIAN BAR ASSOCIATION, THE FEDERATION OF LAW SOCITIES OF CANADA, AND THE QUEBEC BAR ASSOCIATION
Testimony before the Parliamentary Standing Committee on Public Safety and National Security
29 November 2007

Hon. Sue Barnes: For the record, if you care to give it, I'd like your opinion of whether the bill as it currently stands would pass a constitutional challenge, as is, and just each association, if you care to give that.

Ms. Isabelle Dongier (Lawyer and Member, Citizenship and Immigration Law Section, Canadian Bar Association): Well, according to the CBA review, the bill does not pass the charter's test right now. It needs to be amended, definitely, on various accounts.

Mrs. Frederica Wilson (Director, Policy and Public Affairs, Federation of Law Society of Canada): I don't claim to be an expert in constitutional, but I think there's a very serious question about whether it would pass. It does not provide the safeguards the Supreme Court indicated would be required. One can assume, under the circumstances, that it would have a rough ride.

Mr. Pierre Poupart (Lawyer, Member of the Committee on Human Rights and Member of the Committee on Criminal Law, Barreau du Québec):     At the Barreau du Québec, our opinion is that, as currently drafted, this bill is not different enough from its predecessor to be considered constitutionally valid.

INTERNATIONAL CIVIL LIBERTIES MONITORING GROUP (ICLMG)
Testimony before the Parliamentary Standing Committee on Public Safety and National Security
29 November 2007
My name is Warren Allmand. I'm here with Roch Tassé representing the International Civil Liberties Monitoring Group, which is a coalition of over 30 NGOs, unions, faith groups and other civil society organizations which came together in the aftermath of September 11, 2001 to monitor the impact of anti-terrorism measures on human rights, and to advocate against violations of national and international human rights standards. ….
Mr. Chairman, the only major difference between this Bill C-3 and the previous law is the introduction of the Special Advocate. The key provisions which prevent the right to know the case against you remain the same. Consequently, after careful examination, it's clear that this provision—the Special Advocate provision—does not overcome the Supreme Court's arguments and decision of illegality. It does not save or sanitize the security-certificate process. There is still no due process, and Charter articles 7, 9 and 10 are still not respected. (…)
The people who are producing the information to support security certificates are the same people who said that Maher Arar and his wife were Islamic extremists linked to al-Qaeda terrorist movement; that Mr. Arar was in Washington on September 11, 2001, when he was in San Diego; that he travelled from Quebec when he had a coffee in Ottawa with Mr. Almounty, when in fact he lived in Ottawa; that he refused to be interviewed by the police when in fact he had agreed to be interviewed with his lawyer and after this request for an interview left suddenly for Tunisia when in fact he left five months later. (…)

HUMAN RIGHTS WATCH
Brief on C-3
19 November 2007

Human Rights Watch is deeply concerned that key provisions of 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, violate fundamental due process standards guaranteed by international human rights law and by the Canadian Charter of Rights and Freedoms (the Charter).   We urge you to work to amend the bill to eliminate these provisions, or to vote against the bill’s passage.

Bill C-3, tabled on October 27, 2007, was drafted in response to the Supreme Court’s February 23, 2007 decision in Charkaoui, which struck down as unconstitutional the security certificate regime provided for in the Immigration and Refugee Protection Act (IRPA). The proposed law, which draws heavily on the special advocate (SA) system used in national security deportation appeals in the United Kingdom, contains a number of serious flaws, including: 1) the use of secret evidence not available to the person subject to removal or his chosen legal representative; 2) the lack of specific disclosure obligations for the government and disclosure rights for SAs, including with regard to exculpatory evidence; 3) the absence of an express prohibition on the use of evidence obtained by torture; and 4) provisions that effectively could result in the indefinite detention without charge or trial of the person subject to removal. ….

AMNESTY INTERNATIONAL
Public Statement
25 October 2007

Unfortunately Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate), falls dismally short of what would be required to meet minimal international and constitutional fair trial guarantees.

Amnesty International is deeply disappointed that the government has imported the United Kingdom’s Special Advocate model in responding to the Supreme Court’s concerns.  Under the proposed new system, Special Advocates would be appointed to look out for the interests of individuals who are the subject of security certificate proceedings.  However, once a Special Advocate is given access to the evidence in government files he or she would be barred, absent court approval, from further communication with the individual whose interests they are expected to represent.  When the Special Advocate’s ability to communicate with the person named in the certificate is seriously restricted in this way, the Special Advocate is severely constrained in his or her ability to respond in any meaningful way to the government’s secret evidence. As long as that is the case, the process remains fundamentally flawed.  These restrictions and other limitations fall short of fair trial guarantees. 

This shortcoming in the UK system has been roundly condemned by a number of Special Advocates themselves, as well as by a UK parliamentary committee.  The system has been described as providing a veneer of legality to what remains a deeply unfair process.  Amnesty International has repeatedly called for the UK process to be reformed.  While the Supreme Court of Canada did point to the UK system as an improvement over the existing Canadian system, it also acknowledged that there were many criticisms of the UK approach.

Public Safety Minister Stockwell Day has argued that the discretionary power of the presiding judge to authorize communication between the Special Advocate and the person named in the certificate will allow them to maintain substantial contact.  That assurance, however, runs counter to the government’s consistent insistence that secrecy necessitates excluding the individual concerned from the process.  Furthermore, UK experience points to such communication being authorized only rarely.

The legislation also fails to remedy other longstanding shortcomings in Canada’s approach to dealing with immigration cases that involve security concerns.  For instance, provisions in Canadian law allowing individuals who are alleged to be security threats to be deported to countries where they face a serious risk of being tortured remain unchanged.  Deporting anyone to a situation of likely torture clearly contravenes Canada’s international human rights obligations.  UN level expert human rights bodies have repeatedly called on Canada to amend these provisions.

With this Bill the government had an opportunity to demonstrate a commitment to putting respect for international human rights at the heart of Canada’s counter-terrorism and security laws.  Instead, the government has chosen to again sacrifice human rights in the name of security, a flawed approach that results only in injustice and insecurity. …

CANADIAN COUNCIL FOR REFUGEES
Brief on C-3
26 November 2007

The Canadian Council for Refugees believes that:

• Canada’s response to potential security threats should be founded on full commitment to human rights and should not rely on distinctions between citizens and non-citizens.

• The use of secret evidence is a grave threat to the principles of fundamental justice.  Given this, any use of secret evidence must be kept to the absolute minimum and maximum safeguards must be provided to any person whose rights are at stake.  If the safeguards are insufficient to allow the person to know and meet the case against them, the secret evidence must not be used.

• The security certificate process should be eliminated.

• The potential for the use of secret evidence in other immigration proceedings (through s. 86) is much broader than in security certificates and the rights safeguards are minimal.  This aspect of Bill C-3 has not received the attention it deserves.

• Canada must take seriously its obligations to protect non-citizens from removal to persecution or torture.  The law needs to be amended in this regard to conform with international human rights instruments to which Canada is signatory.

EXCERPTS FROM HEARINGS OF STANDING COMMITTEE ON PUBLIC SAFETY AND NATIONAL SECURITY ON BILL C-3
Thursday, 29 November 2007
 
Mr. Pierre Poupart (Lawyer, Member of the Committee on Human Rights and Member of the Committee on Criminal Law, Barreau du Québec):
(…) Let's take another completely hypothetical example, which we haven't seen in the media for a number of years now. An individual, whom we will call Arar, for the purposes of our discussion, gave information under torture in a given country, and that information was used against another individual, here in Canada, with a view to deporting him. Are we talking here about information, evidence and intelligence that is credit-worthy, based on the test that appears further on in the legislation? That is the fundamental question we should be asking.
    When you are dealing with real evidence, the question does not arise, because the Criminal Code explicitly states “beyond a reasonable doubt”. However, when you have information or intelligence obtained through association or in a variety of manners, including under torture, can you conclude that such information is truly credit-worthy and can be relied upon to arrive at the kind of conclusion that is sought here?
(…)
    Mr. Chairman, even when there has been disclosure of all the evidence and a standard of proof as rigourous as proof beyond a reasonable doubt has been applied, there have been miscarriages of justice that have resulted in absolutely horrendous human catastrophes. With all due respect, the very least that we should require, if we want to claim that someone is a danger to national security—which is already quite a significant charge, as I'm sure you will agree—is that the process reduce, to the greatest extent possible, the risks of stamping a human being with such a seal of infamy, without having taken all the necessary precautions to ensure that all the facts are known and that the individual in question has been properly represented. I see that as the very essence of a society that does not treat life, liberty and security of the person lightly.

***************

Mr. Rick Norlock (Northumberland—Quinte West, CPC):
(…) There are a lot of devious people in this world who get the impression that all you have to do is put your big toe on Canadian soil and mister, you have every benefit this country has to offer, bar no expense. How do you tell the person who carries a lunch pail into a factory every day and works hard and pays taxes that all of a sudden, somebody who the government or an agent of the government who we would hope would act in the best interests of every Canadian.... This might be a devious person who wants to be a Canadian. They say, “Put his butt on a plane and send him back to where he came from”. There is a right way to come to my country and there is a wrong way to come to my country. (…)

Mr. Hugues Langlais
In order to give an appropriate answer to the question you raise, we would have to go back to 1982, when a document entitled “The Constitution Act, 1982”, incorporated the Canadian Charter of Rights and Freedoms, was enacted. The answer is right there: it uses the term “chacun” or “everyone”, in English. Therefore, it applies to everyone living in Canada.
    You cannot have different legal systems for people living in Canada. There is one legal system, and if we want to exclude people, then we need to name the people that are excluded. Then we can say that those people are not entitled to constitutional protections and guarantees. But, in that case, we have to officially state, for all the world to hear, that Canada is refusing to provide certain guarantees to certain people. Let's not bury our head in the sand. Either this document is valid or it isn't. It has been in effect since 1982, and I believe it has a certain force which, unfortunately, is binding. (…)

Mr. Pierre Poupart :
    What you could say to your constituents—and I don't believe that there is a single human being in Canada who would not understand this—is exactly what the Supreme Court stated in the Oakes case, shortly after the adoption of the Canadian Charter of Rights and Freedoms. You will find the relevant passage in the report of the working group that has been provided to you. It talks about the presumption of innocence under the criminal law but, in my opinion, the same comments apply analogously to a situation such as the one that arises with security certificates:

An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that, until the State proves an accused' guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community, until proven otherwise [beyond a reasonable doubt].

     That applies analogously to a situation which is certainly much more likely to result in disastrous consequences for an individual who is to be branded a danger to national security when, in fact, even for the most minor offence of shoplifting, the presumption of innocence, which flows directly from our conception of human dignity, requires that this be proven beyond a reasonable doubt. As lawyers, we are deeply convinced that this government, this legislative assembly, could find a way to ensure that the burden of proof be raised to reflect principles which are at least as evocative as those associated with the standard of proof beyond a reasonable doubt.

****************

Ms. Bonnie Brown (Oakville, Lib.):
Okay, I have one more question on your thing about overextended detention. There's a little bit of a farce when the government pretends it's going to deport somebody, but knows it's not going to deport them because there's capital punishment or torture in that country.
    For how long do you think the government should be able to play that game without either moving on to charges under the Criminal Code or to release? We have somebody who's now been in detention for seven and a half years. Is that too long, in your view? Should it be shorter? Should we put a limit of let's say four years on this kind of detention in a prison?

Ms. Isabelle Dongier (Lawyer and Member, Citizenship and Immigration Law Section, Canadian Bar Association): 
I don't think there is a magic number of years to take as a specific reference.
Our recommendation would be that once it is determined that this person cannot be removed—cannot be sent back home—for various reasons, then we cannot just say that we have another couple of years to keep this person in detention or that we should not detain her any longer. At that stage, once it is determined that we cannot send that person back, you have to handle her differently. You have to put her back into the regular system of the Criminal Code.

***************

Ms. Bonnie Brown (Oakville, Lib.)
We've had five legal groups here today, groups that are very familiar with the details of all this, and four [in fact all five; Ms.Brown appears to have misunderstood the Barreau de Québec, who testified in french – CJAC] of them have suggested to us that they do not feel that the bill as written would meet a charter challenge. As a matter of fact, probably the most experienced person in this field has suggested that he knows of at least three groups that will take the government to court, all the way to the Supreme Court, in a charter challenge if this bill goes through as written.
    I've been here 13 years and I have never heard that said at a committee meeting before, that the bill is so bad or has so many flaws—not all bad, but it has certain flaws—that if corrected, could spare the state a charter challenge case.