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 (Bill C-3): Senate Special Committee on Ant-Terrorism Hearing on February 11th 2008.
The Supreme Court of Canada, on February 23, 2007, in Charkaoui v. Canada (Citizenship and Immigration),  1 S.C.R. 350, 2007 SCC 9, ruled that the security certificate process instituted in 1977 under the Immigration and Refugee Protection Act (IRPA) was unconstitutional as it was contrary to Section 7 of the Canadian Charter of Rights and Freedoms (Charter) insofar as “…it allows for the use of evidence that is never disclosed to the named person…” The certificate process was struck down but the SCC suspended its declaration for one year to give the government time to amend the law. Furthermore, the Court found that the IRPA violated the Charter because it “…denies a prompt hearing to foreign nationals by imposing a 120-day embargo, after confirmation of the certificate, on application for release.”
Eight months later, in October of 2007, the government tabled Bill C-3 to amend the IRPA in accordance with the Supreme Court of Canada’s Charkaoui decision. Bill C-3 proposed to make the IRPA compliant with the Charter by creating a special advocates for persons detained. Special advocates were to have security clearance and the right to cross-examine material witnesses, including members of Canadian Security Intelligence agencies. Special advocates could request, but not compel, disclosure of relevant documents.
Another amendment would institute an automatic review within 48 hours of the person being served with a security certificate, and the individual would then have the same extension of time plus regular reviews of their detention.
Bill C-3 was criticized by many organizations legal and human rights organizations. Lawyer’s Rights Watch Canada – LRWC was accepted, along with about 20 other groups, including Amnesty International, Human Rights Watch, the Canadian Bar Association, various civil liberties groups, two security certificate detainees and representatives of a number of Muslim and Arab legal groups to give evidence before the Senate Special Committee on Ant-Terrorism on February 11/08. LRWC was represented by Paul Copeland.
Critics advised that the proposed amendments to the security certificate procedure contained in Bill C-3 failed to create a procedure that reasonably met the fundamental justice requirements of Section 7 of the Charter and failed to minimally guarantee the individual’s right to know and defend the case against him/her. Critics also outlined the failure of the proposed amendments to redress the lack of transparency of the security certificate process. Some specific issues raised:
- While the special advocate can ask for disclosure, the special advocate doesn’t know what exists to be disclosed.
- The term “other evidence”, which has been introduced into the Canada Evidence Act, is evidence that does not get examined and as such becomes no more than opinion, based on very dubious information – sometimes elicited by torture.
- CSIS controls what gets to everyone – the Ministers, the judge, the special advocate.
- Various groups identified indicators of the inadequacy of CSIS control of evidence, including:
- In the Air India and Arar cases documents went missing and inaccurate or disinformation was leaked to the press and, in the case of Maher Arar, to the press and to U.S. officials.
- A document was released by CSIS to the Arar commission in 2003 which indicated their own concerns about the paucity of evidence to hold Hassan Almrei who was then, and is still, detained.
Mohamet Harkat and Adil Charkaoui, who have themselves been issued with security certificates, gave evidence to the Senate Special Committee on Ant-Terrorism about the devastating effects the security certificate process has had on their lives and the lives of their families.
Muslim groups giving evidence on behalf of detainees and the Muslim community presented their concerns about indefinite detention, racial and/or religious stereotyping, the creation of new charges as the process unfolds, and the low standard of proof and level of evidence required for a certificate.
Several groups spoke to the unconstitutionality of special treatment for non-citizens and there was a widely held opinion that dealing with national security matters could be adequately death with under the Criminal Code.
After approximately ten and half hours spent on a process that would have usually taken four to five weeks, the Senate Special Committee on Ant-Terrorism suggested passing the Bill without amendments and recommended that the Senate provide the Committee with the opportunity to conduct a full study on the security certificate process in the months to come, as Minister Day wrote, in a letter dated February 12, 2008, addressed to the Chair and, reads, in part:
“Once Bill C-3 has passed, I would welcome the Senate Special Committee on Anti-Terrorism continuing its study of the security certificate provisions of the (IRPA) and report any recommendations to the Government before December 31, 2008.”
February 11th 2008: Paul Copeland gave evidence to the Senate Special Committee on Ant-Terrorism and said, inter alia that the proposed Bill would result in further Charter challenges and that such challenges would be almost assured of success. Mr. Copeland, among others, vigorously counseled against passing Bill C-3 and lamented the extremely short time the Senate had been given by the Government to consider Bill C-3.