Re: Bill C-3: an Act to amend the Immigration and Refugee Protection Act
To: Senate Special Committee
From: Paul Copeland, member of LRWC
Date: 2008-02-11
Submissions by Paul Copeland to the Senate Special Committee on Anti-Terrorism on 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), on February, 11th 2008.
It is the position of LRWC that the amendments to the security certificate procedure contained in Bill C-3 do not create a procedure that will meet the fundamental justice requirements of Section 7 of the Canadian Charter of Rights and Freedoms (Charter).
1. We urge Committee members to read the factum filed by the Appellant Harkat in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9 before the Supreme Court Canada and to read the February 23rd 2007 decision in that case.
2. Bill C-3 does nothing in regard to the Section 7 issue. In the words of the Supreme Court of Canada, the person concerned will still not know the case he has to meet. See Paragraphs 53 to 65 of the Supreme Court of Canada Charkaoui decision. As such the Section 7 fundamental justice requirement is violated.
3. The question is whether the bare-bones special advocate model amendments in Bill C-3 are such that the government will be able to persuade a court that the limit on the Section 7 fundamental justice right is justified under Section 1 of the Charter. The onus is on the government on that issue. In our view the government will fail in the attempt to persuade a court that the violation of Section 7 is justified.
4. In the Harkat Factum, the Section 1 issue is dealt with from Paragraphs 86 to 92. In the Supreme Court of Canada Charkaoui decision it is dealt with from Paragraphs 66 to 69.
5. In the constitutional challenge in the Harkat and Charkaoui cases the government called no evidence on the Section 1 issue. The Supreme Court of Canada found the Immigration and Refugee Protection Act (IRPA) regime did not minimally impair the right of non-citizens.
6. In a recent meeting/conference call between the Chief Justice of the Federal Court and all counsel on the six security certificates cases, the Chief Justice inquired whether, if Bill C-3 was passed, there would be a constitutional challenge to the new procedures (which include the use of a special advocate) for determining whether the security certificate was reasonable. Counsel for all six cases indicated that there would be such a challenge.
7. So far as we are aware, the government did not explain to the Commons Committee how they would seek to persuade a court under Section 1 of the Charter how the new procedures minimally impair the right to fundamental justice for the person who is the subject of the security certificate process. We do not know whether Minister Day attempted to make that argument before you today.
8. The time line available for the Senate to deal with Bill C-3 is such that, in our view, it is impossible for you to do a proper job. If the legislative process is not finished by February 23, the government may be able to apply to the Supreme Court of Canada for an extension of time past February 23, 2008. If they apply and fail to get such an extension, or do not apply, all that will happen is that for such time as it takes to properly complete the legislative process, police and security agencies will need, if they think it necessary, to monitor closely the behavior of the 5 men subject to the security certificate process who are regarded as being linked to the al Qaeda threat to Canada.
9. Failure to create a legislative scheme that is Charter compliant will mean perhaps as much as another 4 years of litigation under the Charter to determine if the process for determining that a certificate is reasonable under IRPA, as amended, still violates the fundamental justice requirement of the Charter.
