Frequently Asked Questions – Security certificates
Q1. What is the purpose of the new Bill being tabled today?
A1. Bill C-3, an Act to amend the Immigration and Refugee Protection Act (IRPA), responds to the February 2007 Supreme Court of Canada decision, as well as to certain recommendations regarding security certificates made by Parliamentary Committees reviewing the Anti-terrorism Act.
This proposed legislation will strengthen the security certificate process by introducing a special advocate whose role is to protect the interests of a person named in a certificate by participating in closed court proceedings. The legislation also provides foreign nationals with the same detention review rights as permanent residents.
Q2. Why are certificates needed? How would this legislation enhance the security of Canada?
A2. Non-Canadians may have a qualified right to remain in Canada. Inadmissible persons may be removed through various immigration enforcement processes, including security certificates.
If an individual is inadmissible to Canada on security or certain other grounds, and there is sensitive information that needs to be protected, a certificate may be issued. By using this process, the government seeks to fulfill its duty to keep Canadians safe while at the same time protecting sensitive information.
Q3. What will happen if the legislation is not in place by February 2008?
A3. If new legislation is not in place by February 23, 2008, an important public safety tool would be lost. The government would be unable to issue new certificates against individuals who pose a threat to the security of Canada.
In addition, individuals currently subject to certificates under the existing process could apply to have the reasonableness determinations quashed by the Federal Court. In short, the security certificate regime would cease to function.
Q4. What would be the core role of the special advocate?
A4. The core role of the special advocate is to protect the interests of the subject of a security certificate by challenging the Public Safety Minister's claim to the confidentiality of information, as well as its relevance and weight. The special advocate may also make written and oral submissions to the court and cross-examine government witnesses. These responsibilities would be performed within closed court proceedings.
Q5. How does the use of special advocates (SA) address the Supreme Court of Canada (SCC) decision?
A5. The proposed special advocate scheme provides for the protection of an individual's rights by ensuring a person's interests are adequately represented during closed court proceedings. This model will strengthen an important public safety tool by making it fairer to the person subject to the certificate process, while recognizing the need to prevent the disclosure of confidential information.
Q6. How would the government select special advocates?
A6. The legislation proposes that the Minister of Justice will establish a list of independent, qualified special advocates who meet the criteria set out in the IRPA Regulations.
It is anticipated that the qualifications set out in the Regulations will include membership in good standing in a law society of one of the provinces or territories of Canada, at least five years of relevant litigation experience, no conflicts of interest, appropriate security clearance.
Q7. Will the special advocate be able to talk with the person subject to the security certificate process?
A7. Prior to seeing the confidential information, the special advocate's ability to communicate with the subject of the security certificate will be unrestricted. At this stage, the special advocate would have the benefit of a summary of the case to discuss with the subject. This should assist the special advocate to prepare for the closed court proceeding.
Once the special advocate has seen the confidential information, he/she may not communicate with anyone about the proceeding during the remainder of the proceeding, except with the approval of the judge.
Detention Review Provisions
Q8. How does the proposed legislation implement the SCC decision regarding reviews of the reasons for continuing to detain individuals?
A8. The proposed legislation reflects the Supreme Court's decision by providing foreign nationals with the same detention review rights as permanent residents.
Any person subject to a security certificate will be entitled to an initial detention review, by a Federal Court judge within 48-hours. This may be followed by ongoing reviews at six-month intervals thereafter.
In the case of both foreign nationals and permanent residents, the Minister of Public Safety must issue a warrant for the arrest and detention of individuals subject to a security certificate, if it is believed that the person would endanger public safety or national security. A Federal Court judge would then decide if detention is warranted.
Q9. Why do these or other individuals need to be detained?
A9. There may be individuals who are inadmissible to Canada under the security provisions of the Immigration and Refugee Protection Act (IRPA), given their links to, for example, terrorism or espionage. IRPA authorizes detention of a person who poses a danger to national security or to the safety of any person pending the removal of that person from Canada. Individuals subject to a certificate may be detained, if so ordered by a Federal Court judge, until they can be removed from Canada.