The Canadian Parliament’s Bill C-3 came into force February 22, amending the Immigration and Refugee Protection Act 2000, just one day before a Supreme Court deadline expired.
The 2000 Act enabled the Government to detain and deport non-nationals it deemed inadmissible. Bill C-3 is in response to Supreme Court criticism that the security certificate regime was unconstitutional because it deprived concerned individuals of the opportunity to defend themselves because evidence cited for the government’s decision to detain or deport could be withheld from the individuals, their legal representatives and the public under terms of national security.
There are five North African and Arab men and one Sri Lankan Tamil currently under the (old) IRPA legislation.
The new Act incorporates a ‘Special Advocate’ role for lawyers selected by the government, similar to the scheme in the United Kingdom. The Special Advocates may see classified information and cross-examine witnesses on whose testimony ministers could issue security certificates against individuals.
However, leading barristers, including former Government Counsel on the Maher Arar Inquiry, Mr Paul Carvalluzzo, have stated the Government hasn’t done enough with its revised legislation to adequately protect the Charter Rights of those facing deportation under the security certificate process.
Whilst Special Advocates may have as much contact with the detainees and their legal team before seeing the secret information, afterwards, when critics say such contact is most crucial to challenging the Government’s contentions, the Special Advocates may only communicate in writing with the person concerned and then only with the permission of the Court and subjecting their letter to vetting by the Government.
Mr Carvalluzzo believes the Bill fails to give Special Advocates sufficient leeway to meet with the accused after having seen the government’s secret evidence. “Someone who is subject to deportation and possibly torture in another country should have access to as much information as possible to defend their liberty,” he says.
At a minimum the accused individual should be allowed to discuss the case in confidence with the Special Advocate, whom the Government has already vetted, so as to be able adequately defend the case.
Moreover, whilst the process of Special Advocates seeking permission for contact and their letters being vetted is ostensibly to prevent sensitive information being leaked, the logic fails, critics say, on two points.
Firstly, the Special Advocates themselves have already been vetted and, indeed, selected by the government itself and are thus presumably held to be responsible and competent persons.
Secondly, the process of Special Advocates submitting their communications with the accused person for government vetting will inevitably undermine their relationship with the accused who will not be able to discuss their case in confidence. It also provides the Government’s legal team with advanced warning of the accused person’s proposed line of argument.
Some civil liberties activists say the Canadian government’s reaction to the Supreme Court ruling last February that aspects of the IRPA were unconstitutional has been tardy.
The Supreme Court gave the government a full year to amend the IRPA. The individuals concerned were still, however, subject to the Act.
However, it was eight months later – just four months before the deadline – that the amendment was tabled. Bill C-3 spent seven days in the House of Commons and passed through the liberal-dominated Canadian Senate with only two days of debate and a single day of committee hearings.
The bill passed the lower house by a 196-71 vote, with most Liberals supporting the Conservative government while the NDP and Bloc Québécois were opposed.
At the Commons committee stage, MPs heard on five occasions from Public Safety Minister, Stockwell Day or one of his staff and, after some pressure on the government, from two of the men under the security certificate regime.
The Government is accused of scaremongering to ensure the Bill passed without real scrutiny; MPs, Senators and opposition parties were warned that if the legislation was not passed they would be perceived as “soft on terrorism” and of jeopardizing Canadians by allowing ‘dangerous’ men to be freed.
Canada’s previous security certificate processes were criticised by right-wing politicians and journalists for what they said were unnecessary delays generated by accused persons being able to appeal against judgments at the certificate and deportation hearings sequentially.
The effect of Bill C-3, the Government therefore argues, will be to simplify the deportation process by running both appeal hearings against the certificates and deportation hearings concurrently.
Meanwhile, in Britain, the Special Advocate system has been criticised as legal window-dressing that doesn't really protect civil liberties as the advocates lack adequate resources, have a restricted legal mandate and can't get access to all the material put forward by the government against the accused.
The 2000 Act enabled the Government to detain and deport non-nationals it deemed inadmissible. Bill C-3 is in response to Supreme Court criticism that the security certificate regime was unconstitutional because it deprived concerned individuals of the opportunity to defend themselves because evidence cited for the government’s decision to detain or deport could be withheld from the individuals, their legal representatives and the public under terms of national security.
There are five North African and Arab men and one Sri Lankan Tamil currently under the (old) IRPA legislation.
The new Act incorporates a ‘Special Advocate’ role for lawyers selected by the government, similar to the scheme in the United Kingdom. The Special Advocates may see classified information and cross-examine witnesses on whose testimony ministers could issue security certificates against individuals.
However, leading barristers, including former Government Counsel on the Maher Arar Inquiry, Mr Paul Carvalluzzo, have stated the Government hasn’t done enough with its revised legislation to adequately protect the Charter Rights of those facing deportation under the security certificate process.
Whilst Special Advocates may have as much contact with the detainees and their legal team before seeing the secret information, afterwards, when critics say such contact is most crucial to challenging the Government’s contentions, the Special Advocates may only communicate in writing with the person concerned and then only with the permission of the Court and subjecting their letter to vetting by the Government.
Mr Carvalluzzo believes the Bill fails to give Special Advocates sufficient leeway to meet with the accused after having seen the government’s secret evidence. “Someone who is subject to deportation and possibly torture in another country should have access to as much information as possible to defend their liberty,” he says.
At a minimum the accused individual should be allowed to discuss the case in confidence with the Special Advocate, whom the Government has already vetted, so as to be able adequately defend the case.
Moreover, whilst the process of Special Advocates seeking permission for contact and their letters being vetted is ostensibly to prevent sensitive information being leaked, the logic fails, critics say, on two points.
Firstly, the Special Advocates themselves have already been vetted and, indeed, selected by the government itself and are thus presumably held to be responsible and competent persons.
Secondly, the process of Special Advocates submitting their communications with the accused person for government vetting will inevitably undermine their relationship with the accused who will not be able to discuss their case in confidence. It also provides the Government’s legal team with advanced warning of the accused person’s proposed line of argument.
Some civil liberties activists say the Canadian government’s reaction to the Supreme Court ruling last February that aspects of the IRPA were unconstitutional has been tardy.
The Supreme Court gave the government a full year to amend the IRPA. The individuals concerned were still, however, subject to the Act.
However, it was eight months later – just four months before the deadline – that the amendment was tabled. Bill C-3 spent seven days in the House of Commons and passed through the liberal-dominated Canadian Senate with only two days of debate and a single day of committee hearings.
The bill passed the lower house by a 196-71 vote, with most Liberals supporting the Conservative government while the NDP and Bloc Québécois were opposed.
At the Commons committee stage, MPs heard on five occasions from Public Safety Minister, Stockwell Day or one of his staff and, after some pressure on the government, from two of the men under the security certificate regime.
The Government is accused of scaremongering to ensure the Bill passed without real scrutiny; MPs, Senators and opposition parties were warned that if the legislation was not passed they would be perceived as “soft on terrorism” and of jeopardizing Canadians by allowing ‘dangerous’ men to be freed.
Canada’s previous security certificate processes were criticised by right-wing politicians and journalists for what they said were unnecessary delays generated by accused persons being able to appeal against judgments at the certificate and deportation hearings sequentially.
The effect of Bill C-3, the Government therefore argues, will be to simplify the deportation process by running both appeal hearings against the certificates and deportation hearings concurrently.
Meanwhile, in Britain, the Special Advocate system has been criticised as legal window-dressing that doesn't really protect civil liberties as the advocates lack adequate resources, have a restricted legal mandate and can't get access to all the material put forward by the government against the accused.
