Bill C-523

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First Reading

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2nd Session, 39th Parliament,

56-57 Elizabeth II, 2007-2008

house of commons of canada

BILL C-523

An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make consequential amendments to other Acts

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

2001, c. 27

IMMIGRATION AND REFUGEE PROTECTION ACT

1. (1) The definition “information” in section 76 of the Immigration and Refugee Protection Act is replaced by the following:

“information”
« renseigne- ments »

“information” means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, the government of a foreign state, an international organization of states or an institution of such a government or international organization, but does not include information that there are reasonable grounds to believe was obtained as a result of the use of torture as this term is defined in section 269.1 of the Criminal Code or cruel, inhuman or degrading punishment or treatment as this term is used in the international treaties to which Canada is a party.

(2) Section 76 of the Act is amended by adding the following in alphabetical order:

“relevant information or evidence” means any information, evidence or other material that is available to the Minister or, more generally, within the possession of the federal public administration and relevant to the matters under consideration in this Division.

2. Subsection 77(2) of the Act is replaced by the following:

Filing of evidence and summary

(2) When the certificate is referred, the Minister shall file with the Court all relevant information or evidence, and a summary of information and other evidence that enables the person who is named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to national security or endanger the safety of any person if disclosed.

3. Section 82 of the Act is amended by adding the following after subsection (4):

Application for release

(4.1) Where a court of record holds, or the Minister concludes, that removal or departure from Canada is prevented by a point of law or a practical consideration, the person may no longer be detained or subject to conditions on their release pursuant to this Division, and the person may apply immediately to the Federal Court for an order to this effect.

4. Paragraphs 83(1)(c) to (e) of the Act are replaced by the following:

(c) at any time during a proceeding, the judge may, on the judge’s own motion — and shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person and the public interest in non-disclosure outweighs in importance the public interest in disclosure;

(d) the judge shall ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person and the public interest in non-disclosure outweighs in importance the public interest in disclosure;

(e) throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed, provided that the public interest in non-disclosure outweighs in importance the public interest in disclosure;

5. Subsection 85(3) of the Act is replaced by the following:

Indicia of independence

(3) Persons named to the list shall be barristers who are not currently employed in the federal public administration and who meet indicia of independence from that public administration prescribed by the Minister of Justice.

Special advocate

(4) The permanent resident or foreign national shall be entitled to select a special advocate from the list of persons established by the Minister of Justice under this section, subject only to the availability of the special advocate and any conflict of interest that would impair the ability of the special advocate to protect any interests of the permanent resident or foreign national that the latter chooses not to waive.

Administrative support office

(5) The Minister of Justice shall ensure that special advocates are adequately supported by an administrative support office.

6. (1) Subsection 85.1(2) of the Act is amended by striking out the word “and” at the end of paragraph (a), by adding the word “and” at the end of paragraph (b) and by adding the following after paragraph (b):

(2) Subsection 85.1(3) of the Act is replaced by the following:

For greater certainty

(3) For greater certainty, the special advocate is not a party to the proceeding and the relationship between the special advocate and the permanent resident or foreign national is not that of solicitor and client, but rules of professional conduct relating to confidentiality in the solicitor and client relationship apply between the special advocate and the permanent resident or foreign national.

7. Section 85.2 of the Act is amended by striking out the word “and” at the end of paragraph (b), by adding the word “and” at the end of paragraph (c) and by adding the following after paragraph (c):

(d) request that the Review Committee referred to in section 34 of the Canadian Security Intelligence Service Act investigate whether information provided by the Minister to the judge and the special advocate under this Division includes all relevant information or evidence and provide a report of its conclusions to the judge; and

(e) challenge the scope of disclosure of relevant information or evidence by the Minister to the judge and the special advocate.

8. The Act is amended by adding the following after section 85.2:

Powers

85.21 Upon receipt of a request made under section 85.2(d), the Review Committee may exercise any of the powers enumerated under section 50 of the Canadian Security Intelligence Service Act.

9. Subsection 85.4(3) of the Act is replaced by the following:

Communication

(3) Notwithstanding subsection (2), the special advocate may communicate with the permanent resident or foreign national and their counsel, but shall not disclose information and other evidence provided to the judge and special advocate that has not already been disclosed to the permanent resident or foreign national and their counsel.

Attendance

(4) The judge may order that a member or delegate of the Review Committee referred to in section 34 of the Canadian Security Intelligence Service Act attend any meeting between the special advocate and the permanent resident or foreign national and their counsel that takes place pursuant to subsection (3).

Rules of confidentiality

(5) The member or delegate of the Review Committee attending the meeting referred to in subsection (4) is subject to the same rules of confidentiality as is the special advocate under section 85.1(3).

CONSEQUENTIAL AMENDMENTS

R.S., c. C-5

Canada Evidence Act

10. Section 38.11 of the Canada Evidence Act is amended by adding the following after subsection (2):

Appointment of special advocate

(3) Where a hearing is heard in private under this section, the judge shall appoint a person from the list referred to in section 85 of the Immigration and Refugee Protection Act and that person is to be provided by the Attorney General of Canada or, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence with the potentially injurious information or sensitive information at issue in the proceedings and may make submissions to the judge as to whether it should be disclosed under this section.

R.S., c. C-46

Criminal Code

11. Subsection 269.1(4) of the Criminal Code is replaced by the following:

Evidence

(4) In any proceedings over which Parliament has jurisdiction, any statement obtained as a result of the commission of an offence under this section or of cruel, inhuman or degrading treatment or punishment as that term is used in the international treaties to which Canada is a party is inadmissible in evidence, except as evidence that the statement was so obtained.

Published under authority of the Speaker of the House of Commons

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