Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 2 - Evidence
OTTAWA, Monday, June 19, 2006
The Special Senate Committee on the Anti-terrorism Act met this day at 10 a.m. to undertake a comprehensive review of the provisions and operation of the Anti-terrorism Act, (S.C. 2001, c. 41).
Senator David P. Smith (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I now call this meeting to order.
[Translation]
For those of you tuning in, I would like to explain the mandate of our committee. In October 2001, in direct response to the terrorist attacks in New York City, Washington and Pennsylvania, and at the request of the United Nations, the Government of Canada brought in Bill C-36, the Anti-Terrorism Act.
Given the urgency of the situation at the time, Parliament was asked to expedite its study of this bill and we agreed to this. The projected date for the adoption of this legislation was mid-December 2001.
[English]
However, concerns were expressed that it was difficult to thoroughly assess the potential impact of this legislation in such a short period of time. For that reason, it was agreed that three years later Parliament would be asked to examine the provisions of the act and its impact on Canadians with the benefit of hindsight, and in a less emotionally charged environment.
In December 2004, the Senate struck the Special Senate Committee on the Anti-terrorism Act to fulfil that obligation. In the last Parliament, the special committee held 47 meetings under the leadership of Senator Fairbairn. We heard from 141 witnesses, including government ministers and officials, international and domestic experts on the threat environment, legal experts, those involved in enforcement and intelligence gathering, representatives of community groups and the families of those killed by terrorist acts. The committee also travelled to Washington, D.C., and to London, England.
Parliament dissolved before the committee could complete its work. The committee was again struck by the Senate in May 2006 and, in so doing, it referred all of the papers and evidence previously taken by this committee. When we have completed this study, we will make a report to the Senate that will outline any issue that we believe should be addressed and allow the results of our work to be available to the government and the Canadian public. The House of Commons is undergoing a similar process. The most recent general election resulted in a change of government, and last week we were able to hear from the current ministers of public safety and justice.
In the in camera session that followed, there was a consensus by all senators that we should hear from the Canadian Bar Association's National Citizenship and Immigration Law Section. Therefore, this week we are joined by Lorne Waldman, who is a member of that section and who was before the Supreme Court of Canada all of last week on a significant and relevant case. Mr. Waldman is accompanied by Tamra Thomson, Director of Legislation and Law Reform for the association. Senators will recall that both of our witnesses were before this committee in the last session.
Welcome to the committee. Please proceed.
Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association: Honourable senators, the Canadian Bar Association is pleased to have this invitation to speak to you again. We did appear before this committee, as it was then constituted, twice in May 2005. We spoke about different aspects of the three-year review of the Anti-terrorism Act.
I understand that you have again been given a copy of our submission made at that time. We do not propose to provide any additional written materials at this time because I believe that the issues were well canvassed in that written submission.
Today we will focus primarily on your questions relating to the definition of terrorism, as well as to the elements of a fair hearing within the context of security certificates under the Immigration and Refugee Protection Act.
I will ask Mr. Waldman to make some initial comments and then we will be happy to address your questions.
Lorne A. Waldman, Member, National Citizenship and Immigration Law Section, Canadian Bar Association: We have been asked to address two issues. The first is on the definition of terrorism.
On page 9 of the brief we submitted last time, we provided the definition taken directly from the International Convention for the Suppression of the Financing of Terrorism. If we are to have a definition, it should be concise and easily applied and understood by the courts and all persons involved. The concern is that the definition in the Criminal Code is far broader. We understand that one of the proposals was to take out that section of the definition that says "in whole or in part for a political, religious or ideological purpose, objective or cause.'' While in principle that might be a good idea, we are concerned that given how broad the definition is and given the concerns we raised last time, especially about certain aspects of the definition that we believe would have a serious impact on freedom of speech, if you remove those clauses without fixing the rest of the definition, you create an even broader definition than that which formerly existed. Simply removing these sections without correcting the other parts of the definition is not something the Canadian Bar Association could support.
In terms of amicus, as Senator Smith said, I was before the Supreme Court last week, and I will spend a few minutes explaining the issues in general without commenting on the court case.
I should caution you that although this seems to have arisen mostly in the immigration context, it could arise in other contexts as well. As concerns about national security increase in concert with the need to protect confidential information, there will be a series of other scenarios beyond the security certificate process where the government, CSIS or the other national security agencies will seek to suppress evidence. Finding the right balance between the right to know and meet the case and be heard, and the right of the government to suppress evidence, is critical.
Two different issues emerge within the context of the security certificate process. The government presents evidence and asserts national security confidentiality. Under the current process, only a judge receives the evidence, only a judge decides what evidence can be made public, and only a judge challenges the credibility of the evidence. The rest of us involved in the process believe that it is inconsistent with the concept of judicial independence to require that of a judge. By the same token, we do not believe it is possible for a judge, who does not have the opportunity to meet the accused and create a solicitor-client relationship because of the nature of his position, to properly challenge the credibility of the evidence.
There are two different functions. The first is the question of whether the evidence should be made confidential. Last week, the Supreme Court was very interested in the Arar commission model. Before the Arar commission, Commissioner O'Connor appointed Ron Atkey, who is a former head of SIRC, to be an amicus curiae, and it was his function to make submissions to the commissioner about whether evidence should be made confidential.
Within the context of that issue, which is really an issue of the public interest in ensuring that the process is as open as possible, it was not important for Mr. Atkey to have a direct relationship with Mr. Arar. The issues of confidentiality in that context were issues of the public interest in having as much of the evidence made public as possible.
By the same token, in the security certificate context, with respect to questions of whether assisting the judge in deciding at the end of the day as to what should be made public, you could have an amicus fulfilling that role without having any connection with the person.
The second role that needs to be fulfilled within the context of a secret hearing process is that someone has to test the evidence on behalf of the person who is alleged to be a member of a terrorist group. We all believe that the judge cannot do that; first, because it is not consistent with the judicial function, and, second, because the judge simply does not have the opportunity to meet and discuss the case with the client and to understand the client's point of view.
If that is the case, there are solutions. As was pointed out at the Supreme Court, there is a range of solutions. The most extreme is to have no one challenge, to have the judge do that by him or herself. The other extreme that was presented by some of the people before the Supreme Court was to not have secret evidence.
The court made it clear that this was not acceptable, that there had to be some way of accommodating national security interests but within the context of a fairer process. That is where the amicus comes in. If you have a process with a third party who is security cleared, who is under an oath of secrecy not to reveal the evidence to the person or to the public, there is no reason that person cannot be in the hearing process and assist the judge in challenging the credibility of the evidence.
The government has been pressed to justify this. In the hearings when the Immigration Act was changed to include security certificates for permanent residents, the only justification given was that it was more efficient. There is no risk to national security to bring into the room a security-cleared person to represent the interests of the person in the secret hearing who is under an oath of secrecy. There is no risk. There is no reason the needs of a fairer process cannot be accommodated within the requirements of the national security demands to protect confidential information.
A series of models have been proposed. In the United Kingdom, they have a special advocate. The special advocate is a security-cleared lawyer who represents the person. He meets with the person before he goes into the secret hearing and before he reviews the secret evidence in order to understand the person's case. However, after he receives the secret evidence, he cannot meet again with the person.
That special advocate process has been severely criticized by special advocates and by Amnesty International and other non-governmental organizations as not being fair because it prevents the special advocate from properly discharging his function if he cannot continue to relate with the client after he has received the secret evidence. Remember that he is still under an oath of secrecy and cannot reveal the evidence.
The second model that was proposed was that of the Security Intelligence Review Committee. They hold hearings all the time where there are complainants and secret evidence. They have their own counsel; sometimes they appoint independent counsel. That counsel challenges the evidence within the context of the hearing process, is under an oath of secrecy, but continues to meet with the person throughout the hearing process.
The advantage of the Security Intelligence Review Committee model is that the relationship continues through the process. The big disadvantage of that model, of course, is that the person is not representing the individual but represents the public interest in making sure the information is properly challenged.
The next model is the Arar commission model, where the independent counsel fulfils that function, and Mr. Atkey, who was challenging the government's assertions to special confidentiality. Thus, there were two people assisting the commissioner in that case.
The final model proposed by the Canadian Bar Association before the Supreme Court of Canada is what we call the modified special advocate, where someone is appointed to represent the person who is under an oath of secrecy, who meets with the person beforehand, reviews the secret evidence and continues, bound by his oath of secrecy, to meet with the person throughout the hearing process.
I was asked by the Supreme Court whether that kind of relationship does any good. If the person cannot reveal the information, how can he have a meaningful discussion? An example might assist. Let us say the lawyer for the person is told that CSIS has evidence that the person was in Afghanistan in 2000 and the lawyer cannot reveal that evidence because it was received by a foreign intelligence service. The special advocates can sit down with the person but cannot directly ask, "Were you in Afghanistan in 2000?'' However, he can ask, "Tell me where you have been in the last 10 years and provide proof.''
Therefore, there are different ways for the special advocate to get the information he needs to properly defend the person without revealing national security confidentiality, and that process does not undermine national security; it protects it and creates a fairer process.
I wish to emphasize that some of the Federal Court judges said that we can do this, we do not need help, and it is difficult for us sitting on the outside to judge that, but the more important question is the public's confidence in the administration of justice. I believe that there is a such a widespread concern about the unfairness of a secret hearing process where the person is not represented that it really is undermining public faith in the administration of justice and something must be done.
I have given you the different options. Your report is timely because the Supreme Court will be considering this matter. The Supreme Court has two options. They could read something in or strike it down. I will not suggest what I believe they should or would do. Assuming they were to strike it down, the ball would be back in Parliament's court to put something in. A timely report from this committee recommending some form of due process over and above what currently exists would be helpful in the ongoing political discussions.
The Chairman: Honourable senators, the gist of the position is the concept of amicus curiae. There were some opening comments on the definition of terrorism. That is almost like "What is truth? What is beauty?''
Senators, is it reasonable that we limit our first round of questioning to the concept of amicus curiae?
Senator Nolin: Mr. Chairman, the reason the Canadian Bar Association was invited to attend today was to comment on the statement and testimony of two ministers. Of course, the ministers have touched on the question of amicus curiae, but my line of questioning would be: You have read the ministers' comments. What do you have to say about their testimony?
The Chairman: I had thought we had a consensus, but I am wrong.
Senator Jaffer: You may not have sufficient time to answer, but my question concerns the way our country is now approaching international issues. The Canadian Forces is no longer a peacekeeping force. We are going to have challenges within our country. Has the time come to look at a separate terrorism court? We have a military court, a civil court. You may not have given thought to that issue, so I would like you to give us your submissions later on.
My second question relates to the amicus curiae. You have mentioned all the different models. If lawyers are representing the clients and they have taken an oath of secrecy, obviously the rules of the law society will have to change because they are not completely representing the interests of their client; they have a double role. That will be a challenge. However, the bigger issue for me is what evidence is being received by the judges, by the intelligence services?
I do not know if you have this game in Canada, but when I was little we would sit in a circle and someone would tell you something, and by the time it reached the end of the circle the version had changed. I do not know what is given to the intelligence services, but we do not know what kind of evidence is given. Here, rules are not being followed. Has the time come to develop a protocol on what kind of evidence would be presented to the court? Will the court accept evidence that comes through torture? What kind of evidence will the court accept from the intelligence services?
Mr. Waldman: On the issue of terrorism court, we will have to think about it. We have not taken a position on that issue. I will sidestep that question for now.
On the question of the relationship, if you were to go to some form of special advocate where they continue to have an ongoing relationship through the process, the person would have to be given the option at the beginning as to whether to sign a waiver. I can tell you that this happened in the Arar hearings. Initially, one of the proposals was that we would be given security clearance and go into the hearing and hear the secret evidence without Mr. Arar. Later, the government abandoned that idea, but it was put to us. It was clear to us that we could only do that if Mr. Arar agreed and gave us a waiver, because once we went in and received secret evidence we would not be able to discuss that evidence with him. Obviously, that creates challenges to the solicitor-client relationship. In such a model, the person would have to be given the choice. "Are you willing to let us go in and try to defence your interest? Do you trust us enough, knowing that we may not be able to tell you much of what we know at the end of the day?'' It would have to be done on the basis of a voluntary choice. That is the only way you could continue to protect the solicitor-client privilege, but with a written waiver. Once the person gives the waiver, it would have to be irrevocable, because once we receive the evidence, we cannot reveal it to the person.
With regard to the assessment of the evidence, that is why you need someone in the room. Unless you have someone in the room challenging the source of the evidence, trying to challenge the credibility of the evidence that comes from foreign sources, it is difficult. The way it works now is that we are given general allegations. In one case in which I was involved, it said the person was a member of Babbar Khalsa. We did not see any of the evidence. It was impossible for me to challenge the credibility of the government's case, as I did not know what it was based on. I just knew the empty allegation. Someone has to go into the hearing room with the judge and say to the judge, "This piece of evidence that came from this secret service is not credible. They have an interest in this case, they are notorious, and here are all these reports showing that they use torture,'' et cetera. However, you can only have that kind of dynamic if someone is in the room challenging the evidence.
Concerning the last point about evidence through torture, the House of Lords in England just released a decision in a case in a very similar context, where they said that the special courts in England that were set up to deal with these cases cannot rely on evidence given under torture. I would strongly urge this committee to take a similar approach. Evidence under torture is not acceptable.
[Translation]
Senator Nolin: I want to thank the two representatives of the Canadian Bar Association. As I indicated earlier to the Chairman, the reason, as I understand it, for your being here this morning is that last week, we welcomed to the committee the Minister of Justice and the Minister of Public Security who presented the new government's position on the review of the Anti-Terrorism Act. I am interested in hearing your views and in finding out if the new position that was announced differs from that of the former government. If it is in fact different, how do you feel about that? That would be my first question.
[English]
Mr. Waldman: I read the ministers' comments. I apologize for not answering in French — I am practising but it is not quite there yet.
The main point that struck me from the comments was the minister speculating on the possibility of removing from the definition the sections dealing with political and ideological motivation. As I have said, we do not support that. Our concern is that this definition is extremely broad, and if you take those words out and leave the rest of the definition, you create an even broader definition.
I would urge the committee to look at a narrower definition of terrorism, the one that was accepted by the International Convention for the Suppression of the Financing of Terrorism.
The ministers also said that the powers in the act were necessary, but they did not think they needed any more powers. That was a relief to me personally. I think it was probably a relief to the CBA, too, that they did not want more powers. We made it clear in our brief that we do not support them in some of the powers they have requested.
Since this legislation was passed, we have had four years to consider how often these extraordinary powers have been used as a measure of determining whether they are necessary. As far as I know, the provision for investigative hearings was used once — and not very successfully, I gather, in that case. In the recent arrests in Toronto, there was a statement that none of those extraordinary powers were used. If we can achieve the same objectives of protecting national security without having these serious powers that infringe civil liberties, we should move down that road.
The position of the Canadian Bar Association regarding the special powers is clear from our briefs. Clearly, we do not support all of them. To the extent that the ministers say that they still believe these special powers are necessary, we would respectfully say that experience has shown that they are probably not.
Senator Nolin: I want to bring you into the area of those arrests that were made a few weeks ago in Ontario. I know it is touchy matter, but you can answer however you wish. Is there a lesson for us to draw from what happened?
[Translation]
For my final question, since this operation obviously came to light prior to the commission of any terrorist acts and since there is a legal process involved, would you care to comment at this time about the alleged mistreatment? Some lawyers have even maintained that the treatment of their clients amounted to torture. Are there any lessons that we can draw from this at this time and that might impact our comments and recommendations regarding the Anti-Terrorism Act?
[English]
Mr. Waldman: The biggest lesson we can learn relevant to these hearings is that they were able to achieve their police functions without using any of the extraordinary powers that they sought in the legislation.
We have always believed that the police have a wide arsenal of tools at their disposal already. We wondered when the proposals were introduced whether these additional tools were necessary. I would suggest that the experience of the most recent incident in Toronto clearly demonstrates that they are not. The police were able to do everything they were required to do without resorting to any of the extraordinary powers. I think that confirms the position of the Canadian Bar Association from the beginning.
Senator Nolin: What about the stories of torture?
Mr. Waldman: That is an allegation of a lawyer. Obviously, it has nothing to do with your deliberations. It is extremely serious and if it were true, there needs to be an investigation. That is really a question of how they were treated when they were detained. It needs to be investigated by the competent authorities. I have absolute confidence in the administration of justice and that officials will take it seriously and investigate it.
Senator Andreychuk: You said that if the political and religious motives are removed from the definition, you broaden the definition, and I am inclined to agree. However, would that definitively remove the feeling that some people have across Canada, and some lawyers, that we unduly target religious institutions and political dialogue by having that part in the definition? If we took that part out, do you support the notion that this kind of complaint would no longer have validity?
Mr. Waldman: We think the definition is too broad, especially with respect to interfering with or causing serious disruption of essential services. If you take out the motivation factor, then the motivation becomes irrelevant and the offence becomes broader. Although I understand the concerns of the people who argued for the removal of this section, if you take it out without fixing the rest of it, you have something that is much broader and more dangerous.
Senator Andreychuk: I appreciate that point. You have made your argument, as have others, and it is worthy of looking at another definition.
However, if we leave that phrase in the definition, it appears as thought we are targeting a particular segment of Canadian society. By removing that section, are you saying that the police would still be accused of targeting — in other words, that there is no relevance to that argument?
Mr. Waldman: I think I understand why those people are saying that. From what I heard before the Supreme Court and what I have heard in other places, the targeting is not so much as a result of the definition; it is as a result of who actually is being charged. For example, the argument before the Supreme Court was that the five people under security certificates now are from a specific background, et cetera.
While I understand why people are advocating the removal of this section, I do not think it will help their concern; and I think it will broaden what is already a broad definition.
Senator Andreychuk: You were saying that there are many helpful models concerning this amicus. One was to get security-cleared lawyers. How practical is that in light of the Toronto case? Seventeen people charged and they each have a right to their own counsel. It would be a strange issue to have these lawyers go through a security clearances. What if one of them does not clear security?
Mr. Waldman: The model of the special advocate does not necessarily have to be applied in the criminal context. The whole process is different in a criminal context because you have far greater due process rights than in an immigration context. In a criminal context, the government can seek to suppress evidence. It then goes before a judge of the Federal Court who has to balance the public interest against the interest to maintain secrecy.
At the end of the day, if the evidence is not disclosed and if it is relevant and crucial, the judge can enter a stay of prosecution. Thus, the government has to balance carefully its assertions of national security confidentiality. Many times, I think they would try their best not to rely on secret evidence.
In an immigration context, people have far fewer due process rights, and the issue is whether the government can rely on secret evidence. It seems clear that the courts have said up until now that they can. If they can rely on secret evidence in that type of process, which is not a criminal one, how do you balance and create a fairer process? It may occur in other types of non-criminal processes. You have to look at the need to find a balance.
The critics of the current system have been saying that if you have a system where the person has no one inside the secret hearing room representing his or her interests and challenging the evidence, then it cannot be fair. If that person cannot receive the evidence and it is acceptable in a non-criminal process for that to happen, how do you create the balance? The way that has been done in other countries is through the creation of a security-cleared lawyer. In that context, senior members of the bar — and in England I think most were QCs with 15 to 20 years experience — were security cleared and a panel of available special advocates was created. The person can even choose from the panel as to the one he or she wishes to represent them. It is not in a criminal context this would arise because in a criminal context there is a whole series of protections that do not exist in a non-criminal context.
Senator Andreychuk: On the point of evidence, we were told that the investigative hearings and all these powers that the ministers say they want to retain have not been used, as you have said, except in one case. This is something the police have supported as well.
We were told that there were cases in which that power had been threatened to be used. Obviously, the positive side of that is prevention. The other side of it is that it is a club that can be used against obtaining evidence or putting people in certain positions. Have you seen any evidence in your cases or in your discussions that it is used as a club against certain individuals?
Mr. Waldman: I have not heard anything along those lines. I would be concerned about using that as a justification for an extraordinary power that so seriously abrogates a person's rights.
When it is restricting peoples' rights, there is always an onus on the government to show that they are doing so for a valid reason. The only thing they can come up with is this argument that says we have not used it but we have threatened to use it. I think that argument is pretty weak.
Senator Day: When we first received your report in May 2005, we were told that the submission was on behalf of the Canadian Bar Association and all of its 34,000 members. We were also told that the submission had been prepared by the anti-terrorism review group. Mr. Waldman, are you part of that review group?
Mr. Waldman: Since Ms. Thomson formed the group, perhaps she can answer the question.
Ms. Thomson: The Anti-terrorism Act and the scope of the issues the Canadian Bar Association felt should be reviewed as part of the three-year review cover the expertise and interest of many groups within the CBA. We asked each of those groups to name representatives and pull together a team that would then prepare the submission before you.
Mr. Waldman participated on behalf of the Immigration Law Section. The Criminal Justice Section, the Privacy and Access Law Section, the Media and Communications Law Section, the Charities and Not-for-Profit Law Section and many others listed in the preface were also involved.
Senator Day: That is helpful. Therefore, the comments we are hearing from you today are comments not just from the immigration subsection but from the Canadian Bar Association generally.
Ms. Thomson : We are here on behalf of the association.
Senator Day: After you leave and we start our deliberations, would it be possible for us to correspond with you to ask questions that may arise, and could you possibly send a written reply?
Ms. Thomson: Yes, we can do that through our office.
Senator Day: Having that type of talent drawn together from many different committees and therefore looking at this issue from different points of view could be helpful to us.
Mr. Waldman: There was supposed to be someone here from the Criminal Law Section as well. I suppose I am speaking on his behalf as far as the definition of terrorist activity is concerned. He was here last week but was not willing to come back from Vancouver to be here today. Normally, we would have had someone from the Criminal Law Section dealing with the criminal issues and me dealing with the advocacy issues.
Senator Day: I am sure you do not all agree on all these points. You have to work them out, do you not?
Mr. Waldman: I was impressed by the scope of the work and the level of deliberation that went into it. At the end, all of us on the committee spoke with a consensus. Does that represent the view of every one of the 34,000? It represents the view of the association with the process the association goes through.
Senator Day: My second question concerns a point that flows from earlier questions in relation to a specialized court and your comment about the importance of the public having confidence in the process. In this legislation we are asking judges to act in a way that we do not normally expect judges to act in terms of their review and secrecy. You mentioned earlier, Mr. Waldman, that there are certain judges who say, "We can do this. We do not need an amicus curiae. We can handle this process without any problems.'' However, others have elected to proceed in another manner, such as in the Arar case, as you indicated.
Has there been any survey of judges? Is it all anecdotal? Do we know whether judges feel comfortable in this role? Generally, do we know if the role as it appears now is something that judges feel they can deal with? Or are they supporting your point of view that there should be a built-in process for an amicus curiae?
Mr. Waldman: I would be reluctant to speak on behalf of the judges.
I can tell you that Justice Hugesson made a public statement at a conference about two or three years ago. He is also a judge of the Federal Court. He said that the judges feel extremely uncomfortable in assuming this role. We relied on this statement when we appeared before the Supreme Court.
I can tell you from the public statements that have been made by the justices that there is not a consensus. I would suggest to you that once the judge is given the function, he has to do his or her best to fulfill it, whether they like it or not. I cannot see any reason why having someone else in the room to make for a more balanced process would be something that the judges would not normally welcome. However, I would not presume to speak on behalf of the justices.
However, it is important from the point of view of the public faith in the process. I can tell you about my own personal experience. I went through the hearing process. There were 15 days of hearings. We tried our best to answer the allegations. From the beginning to the end, we never knew a drop of evidence. It was all general allegation. When the process is over, you are left with a bad feeling because the judge says, "It is abundantly clear to me that there are reasonable grounds to believe you are who they say you are.'' As counsel of a client who is denied everything from the beginning to the end, it is very uncomfortable to not see one iota of the evidence that proves who your client is.
I found the Arar experience, for example, to be a much fairer one. Even though we have not seen all the secret evidence, which I am told is more than half or as much as 80 per cent, at least Mr. Arar and we as his counsel know that in that hearing room there was an independent individual who was prepared to assume the role of challenging the credibility of the government's evidence.
From the perception of Mr. Arar and those of us who represented him, it was not necessarily the best process, but given the need to balance, we have a great sense that the process was far more fair, and I feel the public does, as well.
From the point of view of the public confidence in the system, it is important to introduce someone else, regardless of what the judges may think, and the judges do their job as Parliament tells them to.
Senator Fraser: You propose, as I understand it, adopting the definition in the International Convention for the Suppression of the Financing of Terrorism. That definition essentially limits itself to acts intended to cause death or serious bodily injury to civilians. What would you do about the class of actions that would consist of things such as blowing up hydro, long-distance transmission lines or pipelines, or people who did what we have seen groups do in the past? The IRA used to plant a bomb in a building and then call up and say, "Everyone out of the building. We do not want to kill anyone, but we will blow up your police station,'' or the hotel where your prime minister is staying, et cetera. Would you not consider those acts also to be terrorist acts, or is there something else in this definition that I have missed?
Mr. Waldman: The definition as set out in the International Convention on the Suppression of the Financing of Terrorism, would cover an act intended to cause death or serious bodily injury to a civilian or any other person. It would cover some of that.
The other acts that you describe, such as planting a bomb, are criminal offences. There is no need to call it a terrorist offence. It is an extremely serious criminal offence. It could be conspiracy to commit murder. That is the whole point. Many of the offences that are captured by the definition of terrorism are criminal offences in any event.
Senator Fraser: Why have any definition of a terrorist act?
Mr. Waldman: That is a good question. Many people are of the view that you do not really need one, but to the extent that you have one, it is important, given all the consequences that flow from it, that it be a precise definition.
We are enacting a definition because the United Nations, through the Security Council, said we must; so if that is our response, we should accept a definition. This has been a matter of major debate. The United Nations has been attempting to define terrorism for 30 years without any success. There is a meeting scheduled in September, and there seems to be doubt as to whether they will be able to come up with a definition.
It is a difficult topic. On the one hand, you want to catch the types of acts you want. On the other hand, you do not want a side effect of suppressing legitimate freedom of expression. Consequently, if we are going to have a definition, it should be kept narrow to protect civil liberties as much as possible. These other items can be captured through the normal Criminal Code definition.
The Chairman: If there were some interest in this committee of moving toward an amicus curiae — and you have referred to several different versions of that concept in other jurisdictions — is there a particular version that you think is the preferred model?
Mr. Waldman: The position we took before the Supreme Court of Canada was to have what we call the modified special advocate. We believe it is important that the person who represents the interests of the individual in the hearing have a solicitor-client relationship. That was one of the issues that the Supreme Court of Canada was very interested in and pushed very hard on.
If there is to be a solicitor-client relationship, it is important that the relationship be ongoing. We see a process where a security-cleared special advocate would enter the room under an oath of secrecy, but who could continue to relate, provided that the person gives a waiver to allow that dynamic to exist.
Otherwise, many people support the SIRC model of an independent counsel. The critical factor is — and I feel that is why the U.K. model was criticized — that regardless of the model, there must be a capacity for ongoing communication between the person representing the interests of the subject of the secret hearing and the person concerned.
The Chairman: When you say the Supreme Court pushed very hard on the issue of whether a solicitor-client relationship should be established, am I to infer that they pushed in favour of that or pushed for your definition?
Mr. Waldman: They were pushing for clarification as to the positions of the different persons. I would not presume to know whether they were in favour or against, but they asked the question: Should there be a solicitor-client relationship?
I have no idea of where they stand on that matter, and I would not presume to guess. It would be inappropriate for me to do so. Having said that, that is the central issue.
The Chairman: Is there anything you wish to add, Mr. Waldman?
Mr. Waldman: The key issue, from my point of view, is that there be someone in the room representing the interests of the public and the individual challenging the secret evidence.
As I said, there are different options. The other key point, and I think the Canadian Bar Association shares this view, is that there has to be an ongoing relationship. There are two options. One would be to make that person an independent counsel who would not have a solicitor-client relationship. There are some advantages and disadvantages to that option. The other would be to have that person establish an ongoing relationship with the individual. I would be happy to put together something within a week, or so, should you find that to be a reasonable time frame, outlining the different options and the pros and cons.
To synthesize my point of view into a few sentences, an ongoing relationship is critical. There must be someone in the room representing the interests of the person, and there has to be an ongoing relationship. Whether or not that individual is actually counsel, my preference is that he or she should be, but I do not feel that is as crucial as the other two factors.
Senator Jaffer: I will not ask another question at the present time, but I do have some. May I please submit them to you, and then you can send your responses to the committee?
Mr. Waldman: Yes.
The Chairman: That would be fine, as we already have an undertaking that the witnesses will look at them.
On behalf of my colleagues, I would like to thank our witnesses for being here today.
The committee continued in camera.