CIMM Committee Report

Dissenting Report from Bill Siksay, M.P. (Burnaby-Douglas) for the New Democratic Party

The Security Certificate Process

New Democrats do not support the security certificate process as provided for in the Immigration and Refugee Protection Act and call for its immediate repeal.  Secret hearings or trials, detention without charge or conviction, detention without the ability to know, test, and respond to the evidence against you, indefinite detention without conviction, and the lack of an appeal, are fundamental violations of due process and civil liberties that must not be tolerated in a free and democratic society.  The security certificate process denies permanent residents and foreign nationals the protection of Section 9 of the Charter of Rights and Freedoms that states that “everyone has the right not to be arbitrarily detained or imprisoned”.  Canadian citizens are not subject to special limitations on their rights in situations where they might be charged with crimes related to terrorism.  Likewise, permanent residents and foreign nationals should not be subject to special limitations.  Issues of terrorism, national security, espionage, and organized crime should be dealt with through the use of the Criminal Code, not a lesser immigration process.  If there is a problem with the Criminal Code’s ability to deal with these types of crimes, then those problems with the Criminal Code should be addressed and fixed. 

Immigration detention should only be used for immigration purposes and should be of short duration immediately prior to legal deportation for violations of immigration law.  If deportation is not possible, alternatives to detention must be pursued immediately.  Immigration detention must not be used as a substitute for bringing charges and seeking conviction for serious criminal matters related to terrorism, violations of national security, espionage, and organized crime. 

Given the seriousness of crimes related to terrorism it is imperative that those accused of such crimes be able to mount an effective and full defense.  This is not possible in the security certificate context where the accused and their lawyers do not know the evidence against them and are not able to test that evidence in a court of law.  Furthermore, a special advocate or advisory panel process falls short of ensuring fairness.  The experience of this process in other jurisdictions has been very flawed, particularly in Britain, where a number of special advocates have resigned due to the serious problems with the system.  Special advocates are unable to ensure that evidence is tested appropriately and cannot guarantee a fair trial, and they merely provide a façade of credibility for such a system.  Tinkering with a flawed process will not ensure fairness.

Canada must never deport to torture and must be in full compliance with the United Nations Convention against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment. Evidence obtained by torture must never be admissible in a Canadian court or in any legal or immigration process.  Canada must also ensure that those who plot terrorist activities are tried, convicted and incarcerated, and not merely foisted on another jurisdiction through deportation. 

In light of this, New Democrats make the following recommendations:

Recommendation: 

That the use of security certificates be abolished and that Sections 9 and 76 to 87 of the Immigration and Refugee Protection Act be repealed immediately.

Recommendation:

That evidence obtained by torture and provided by governments or police and intelligence agencies that practice torture, should not be admissible in a Canadian court of law or in any criminal or legal process or hearing, or in any immigration or refugee process or hearing.

Recommendation:

That immigration detention must only be used as a short term measure immediately prior to removal related to violations of immigration law.

With regard to the recommendations made in the first section of the majority report, New Democrats support only recommendations 4, 5 and 8

The Kingston Immigration Holding Centre (KIHC) and Conditions of Detention

New Democrats support all the recommendations in the report dealing with the specific conditions of detention at the Kingston Immigration Holding Centre until such time as the security certificate process is abolished.  Conditions of detention at KIHC must be improved urgently.  We emphasize that the institutional culture of KIHC must be dramatically changed from that of a maximum security correctional institution, to that of an immigration detention facility, recognizing that those detained there have never been charged or convicted of any crime. 

Most importantly, immediate action must be taken by the Government of Canada and the Minister of Public Safety to negotiate an end to the lengthy hunger strike currently underway at KIHC.  Hunger strikes of this duration are extremely serious, and can lead to long-term health consequences and death.  Before there is a tragedy urgent action must be taken.  No one must be allowed to die or suffer long-term health consequences related to their detention under the security certificate process.  In light of this, New Democrats make the following additional recommendation regarding the conditions of detention at the KIHC:

Recommendation:

That the Minister of Public Safety urgently act to end the hunger strike at Kingston Immigration Holding Centre by appointing a neutral third person acceptable to all parties (preferably the Correctional Investigator of Canada) to investigate and make binding recommendations towards a resolution of specific issues related to conditions of detention at KIHC.