Wednesday, March 28, 2007

The Special Senate Committee on the Anti terrorism Act

has the honour to table its


Your Committee, which was authorized by the Senate on Tuesday, May 2, 2006, to undertake a comprehensive review of the provisions and operation of the Anti-terrorism Act, (S.C. 2001, c.41), now tables an interim report which provides further commentary on certain issues addressed in its Third Report, tabled in the Senate on February 22, 2007.

In its Main Report entitled Fundamental Justice in Extraordinary Times, the Committee indicated that it might issue a follow-up report in order to comment on developments relevant to the Anti-terrorism Act and Canada's national security framework arising after the tabling of the Main Report in the Senate on 22 February 2007.  One day later, the Supreme Court of Canada rendered its decision in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, regarding the constitutionality of the security certificate process.

We note that the Supreme Court decision is largely consistent with the Committee's recommendations regarding the need for a special advocate in anti-terrorism-related proceedings where information is withheld from an affected party, and its recommendations for greater procedural fairness when an individual is detained and subject to deportation under a security certificate.  First, the Court concluded that the Immigration and Refugee Protection Act (IRPA) unjustifiably violates the Charter by allowing a security certificate to be issued on the basis of secret material without providing for an independent agent during judicial review to protect the named person's interests (para. 3).  The current scheme does not conform to the principles of fundamental justice because it denies the named person the opportunity to know the allegations and arguments against him or her, and therefore to challenge the government's case (para. 65).

The Supreme Court found that there have been mechanisms developed in Canada and abroad that can do more to protect the individual while keeping critical information confidential, but left the precise changes and improvements to the security certificate process to be decided by Parliament.  The Committee has already indicated what it considers to be some of the necessary features:  it has called for the establishment of a roster of security-cleared counsel, with the appropriate expertise and funded by (but not affiliated with) the government, who would represent the interests of an affected party, as well as the public interest in disclosure, in proceedings where information is withheld on the basis of national security (Recommendations 7 and 9 of our Main Report).

While the constitutionality of only the security certificate process was before the Supreme Court, we urge the government, as recommended in our Report, to appoint a special advocate in all proceedings where confidential information results in an individual's inability to make full answer and defence.  These include judicial review of a decision to list a terrorist entity under the Criminal Code and other listing regimes, judicial consideration of a certificate having the effect of denying or revoking an organization's charitable status under the Charities Registration (Security Information) Act, and applications under the Canada Evidence Act to disclose withheld information or to cancel a certificate issued by the Attorney General of Canada prohibiting disclosure.  Given the applicability of the Supreme Court's views to other anti-terrorism-related proceedings, the government should certainly not limit the appointment of a special advocate to processes under the IRPA.

In addition, we reiterate our Recommendation 8 that there be ongoing communication between the special advocate and the affected party throughout the proceedings, even after the former has learned confidential information, subject to guidelines and policies to ensure the secrecy of the information and national security interests.  Like the Committee in its earlier Report, the Supreme Court noted criticism of the United Kingdom approach in that special advocates are generally unable to take instructions from the individual once they have seen confidential material (para. 83).   

The second important conclusion of the Supreme Court was that the lack of review of the detention of a foreign national, until 120 days after the reasonableness of a security certificate has been judicially determined, unjustifiably violates the Charter guarantee against arbitrary detention and the right to have the validity of one's detention considered (para. 91).  Just as the Committee had urged the government in its Recommendation 30 the previous day, the Supreme Court immediately included foreign nationals in section 83 of the IRPA so that they are entitled to a review of their detention within 48 hours.

As with the appointment of special advocates, however, the Committee went further than the Supreme Court in that it recommended detention review for permanent residents and foreign nationals not just every six months, but within 30 days of detention and every 90 days thereafter (Recommendation 31).  We hope that the government will recognize that the Supreme Court has only set out minimum constitutional protections and that nothing prevents Parliament from adopting other amendments to ensure due process when individuals have been deprived of their liberty.  The same applies to the Committee's Recommendation 33:  although the Supreme Court did not conclude that there must be an available appeal of the judge's determination of the reasonableness of a security certificate, it reminded us that rights of appeal can constitute additional procedural safeguards (para. 59).

Other issues that the Committee raised in the chapter of its Main Report on detention and deportation under security certificates were not squarely before the Supreme Court.  We nonetheless urge the government to take our recommendations into account when bringing about the reforms that are required within one year of the Court's decision.  In addition to having a system of special advocates in place by February 2008 and immediately allowing more frequent detention reviews, the government should propose amendments to the IRPA and related policies so that evidence received by a judge who considers a security certificate is expressly required to be reliable (Recommendation 32), an individual subject to a security certificate is never involuntarily returned to a country where he or she will be subject to torture (Recommendation 34), and diplomatic assurances against torture are accepted only if there will be an effective post-return monitoring mechanism (Recommendation 35).  Although it did not pronounce on these issues, the Supreme Court pointed out the risks of potentially unreliable information (para. 63) and acknowledged that deportation to torture remains at least a theoretical possibility (para. 7).

Finally, the Supreme Court's statement that Canada is not alone in facing the problem of detention in the immigration context where deportation is difficult or impossible (para. 124) reminded the Committee of the importance of its Recommendations 36 and 37.  These called on the government to engage the international community on the issue of how to properly deal with alleged or known terrorists, both in terms of reducing global threats to security and replacing, at the appropriate point, indefinite detention under a nation's immigration law with a criminal process that would allow the individual to fully respond to specific charges.

In short, the Committee welcomes the Supreme Court's decision regarding the security certificate process, as its conclusions are compatible with many of our own recommendations.  At the same time, we urge the government and Parliament to go beyond the requirements of the Court's ruling.  Given the contentious debate that surrounded a proposed extension of the provisions of the Anti-terrorism Act on investigative hearings and preventive arrest, the Committee believes that it can be counter-productive to consider changes to our laws in piecemeal fashion based on isolated issues, provisions or rulings.  To the extent possible, it is preferable to consider anti-terrorism reform as a comprehensive package.  The Supreme Court's decision, other recent cases (such as those on the definition of terrorist activity under the Criminal Code and on section 4 of the Security of Information Act), the recommendations of the Commission of Inquiry into the Actions of Canadian Officials in relation to Maher Arar and the Committee's Main Report have now given the government sufficient guidance to make changes to the whole of Canada's anti-terrorism and national security framework.  It is our hope that, in preparing legislation to meet the requirements of the Supreme Court, the government will also take the opportunity to consider and respond to the recommendations made by the Committee in the context of its overall review of the provisions and operation of the Anti-terrorism Act.

Respectfully submitted,


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