Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 5 - Evidence - Meeting of May 5, 2008
OTTAWA, Monday, May 5, 2008
The Special Senate Committee on Anti-terrorism met this day at 1:32 p.m. to study on the provisions governing the security certificate process set out in the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as recently modified by An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, S.C. 2008, c. 3, as well as conduct a review of the operation of that process in the context of Canada's anti-terrorism framework.
Senator David P. Smith (Chair) in the chair.
[English]
The Chair: Honourable senators, we will begin although I am aware that other members of the committee will be joining us.
Our witness today is Mr. Kent Roach from the Faculty of Law at the University of Toronto, who is well published on this subject. He even gave us a report card, and I think we passed. It not an A-plus, but we did pass. Professor Roach attended the University of Toronto and then he did a postgraduate degree at Yale. He is familiar with the work this committee has done, the scope of what was studied in the past and our mandate at the moment.
Therefore, Professor Roach, we would welcome your thoughts on where we go from here, what priorities we should focus on and any insights you can provide on that or related matters.
Kent Roach, Prichard-Wilson Chair of Law and Public Policy, Faculty of Law, University of Toronto, as an individual: Thank you. It is a pleasure to be back and to help with the important work of this committee. In my opening remarks, I would like to make five points. The first three will respond to points raised in the committee's report on Bill C-3. The last two points will relate to the broader focus to which the chair alluded.
First, I realize this is an unusual approach given that Bill C-3 has become law. However, we are still talking about it. I think it is fair to say that Bill C-3 was rushed, as has unfortunately been the case with many debates over national security legislation in this county since 9/11. I could certainly see that from the deliberations of this committee. I believe the Senate had the bill for only about a day.
Of course, I am aware that there was a need to respond to the one-year suspended declaration of invalidity from the Supreme Court. However, it seems to me that when we pass laws in that sort of rush, it is very important to have either a three-year or a five-year comprehensive review of the operation and effectiveness of the security laws. I note that Bill S-3, which is before the other place, has this, but Bill C-3 does not. That omission is unfortunate.
Senator Smith mentioned a report I did for the Institute for Research on Public Policy. It is an occupation hazard for a professor, but I had the temerity to grade the work of the committees. I genuinely feel the committees have important work to do, and I would like to see you have more resources and research help to do the work.
It is important to develop expertise among parliamentarians on these security issues. Hopefully they will not dominate our political life as a nation, but when they arise they are of the utmost importance. It is important for Parliament to have sound policy advice and research in the bank when those moments arise.
Under Bill C-3, the Federal Court has a committee that will help it develop rules with respect to special advocates. However fine that committee may be, it is no substitute for Parliament's coming back in three or five years and asking itself whether this experiment with special advocates and security certificates is working or whether we could do things better.
It is important for Parliament to conduct that review because the line people in the executive who are administering these security certificates have dug in on the five existing security certificate cases. Parliament has an ability to stand back and examine whether these processes of special advocates in particular and security certificates in general are effective.
I say that from the perspective of concerns about both rights and security. Parliamentary review is well-suited to look at issues of propriety and efficacy. As you will see later in my remarks, I have serious concerns about deficiencies with security certificates from a rights perspective. They are not a particularly rational way of dealings with people who are suspected of involvement with terrorism.
I do think it is unfortunate that there is no three- or five-year review in Bill C-3, but I do recognize that this committee will continue its work in this year to do a report. I would encourage you to do the best you can with doing a review of how special advocates are working under Bill C-3.
Special advocates have gotten off to a pretty good start. The list of people who have been appointed as special advocates is impressive. They are people who have a lot of expertise in this area — people who have expertise with commissions of inquiry, with the Security Intelligence Review Committee, SIRC, as defence counsel in criminal cases and the like. I would urge honourable senators to consider asking some of these people to come to you before the end of this year to talk about their experiences.
I recently was at a conference in Toronto where Paul Cavalluzzo, one of the special advocates and lead commission counsel in the Arar commission, spoke quite passionately about some of his concerns about Bill C-3. People like Mr. Cavalluzzo would be excellent witnesses during this review.
I will move on to the second point that is identified in this committee's report, the issue of what the special advocate can do after he or she has seen the secret information. Here I would just point out that section 85.4(2) of Bill C-3 is, to my mind, extremely broad. It provides that after the special advocate has seen the information, ``the special advocate may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge's authorization and subject to any conditions that the judge considers appropriate.''
This issue has generally been framed as whether the special advocate can go back to the security certificate detainee and ask questions. That is obviously very important. In the secret information, if there is evidence or intelligence that says the detainee was in Afghanistan at a training camp in 1996, it will be crucial, if the special advocate has not got that information up front, to go back to the detainee, not to say that CSIS has this information because they found it out through the Americans or the British, but to ask what the detainee was doing in 1995, 1996 and 1997.
I would also point out that this provision stops the special advocate from talking to anyone, any expert in the area. Without having actually seen what this intelligence looks like, I can well imagine that a special advocate, like any lawyer doing his or her job, would want to consult an expert witness. Yet this provision says that the special advocate cannot even do that. He cannot even go down the hall and talk to another special advocate on another case without getting the judge's authorization.
The Federal Court may be able to run this in an efficient way. I know that with the committee they can develop rules. However, I do think that this is a broad and potentially troublesome provision.
This committee should be looking at facilitating an ability of the special advocate to go back to the judge, get the judge's permission, without necessarily signalling to the other side what is going on. My understanding is that one reason special advocates in the British system at times get frustrated is that if they want to get the judge's permission to go back to the detainee or to another expert after they have seen the secret information, they basically have to tell the government what it is that they want to do.
It would have been advantageous in Bill C-3 to at least write in a discretion that would allow the special advocate ex parte, without the government lawyers' knowing, to go back to the judge and say, ``I want to be able to ask the detainee these questions or I want to go and consult with these experts.''
I note that under section 38.11 of the Canada Evidence Act, the Federal Court has that discretion. In a decision in one of the Khawaja matters, the Federal Court of Appeal has made a big deal about the ability of the accused to be able to go ex parte; it is not only the government, but also the accused.
It would seem to me that special advocates could very well become frustrated and perhaps even reluctant to go back to the judge to ask for judicial authorization to contact someone after seeing the secret evidence if they have to telegraph to the other side exactly what it is they are thinking about.
The next point on this issue is obviously the real heart, and I think most commentators have recognized this. The most important provision in Bill C-3 is section 85.2(c), which says that a special advocate may ``exercise, with the judge's authorization, any other powers that are necessary to protect the interests'' of the non-citizen. This is where the judge has the authority either to allow the special advocate to talk to the detainee after the special advocate has seen the secret information, or to demand further disclosure, or to call the special advocate's own witnesses.
Here, I wonder a bit about the choice of the words ``necessary to protect the interests'' of the non-citizen. Necessity is a fairly high standard. If I was in legal trouble, I would hope that my lawyer would do more for me than simply that which was necessary. I would hope that the person who was representing my interests would do a broader range of matters. I think it will be very interesting to see how the Federal Court interprets this reference to the issue of necessity.
Finally, the last provision of Bill C-3 that I would have raised concerns about is section 83(1.2)(c), which is a provision dealing with appointing special advocates. It provides that one of the grounds for not appointing a person whom the detainee has requested as his special advocate is that the special advocate
. . . has knowledge of information or other evidence whose disclosure would be injurious to national security or endanger the safety of any person and, in the circumstances, there is a risk of inadvertent disclosure of that information or other evidence.
Again, this is just a picky point with words, but I worry about ``a risk.'' I would have preferred it to say a ``significant'' or ``substantial'' or ``serious'' risk. There is always going to be a risk when a person who has had access to classified information speaks on any subject that is related to the classified information. There is always a risk of inadvertent disclosure.
One of the general themes that I want to get across is that I think there is growing evidence in Canada — and this may be related to our undoubted status as a net importer of intelligence — that we are extremely risk-averse when it comes to secrets. Perhaps the reason is that we are largely dealing with other people's secrets, but we are getting to a point where we are so risk-averse about secrecy that we are damaging our abilities to do anti-terrorism work that respects the rights of those who are affected, but also helps protect the security of Canadians. This risk-averse culture that we have developed around secrecy cuts both ways. It means that often the affected person is kept in the dark about much of the information. As well, it permeates the way in which our national security actors do their business.
The third point I want to raise is the issue of disclosure. Disclosure and going back to the detainee are the two major criticisms of Bill C-3. How do we know that the special advocate has all of the relevant information? There is a requirement in Bill C-3 that the special advocate have all of the information that the government has presented in camera, in secret, to the Federal Court judge. However, what about other information lurking about out there? The reply given by the government, and quite rightly as far as it goes, is that the government is under obligation to make full disclosure, and that obligation is heightened when the government has an ability to talk to the judge in secret without the other side being present.
I have written a paper about this with a colleague who is now on the bench. It seems that all my colleagues go to the bench. The subject of the paper is miscarriages of justice and terrorism cases. The experiences of miscarriages of justice often show that the prosecutor has failed to make full disclosure, not because the prosecutor is a bad person or is deliberately flouting ethical rules but rather because of tunnel vision. Prosecutors can spend a great deal of time on a case, in particular security certificate cases, which can run for years. When that happens, there is a natural human tendency to become so invested in the idea that this person is guilty that one says that other evidence deemed by an outsider to be useful to the detainee is not relevant.
The issue of disclosure is very important. It is not clear to me how the special advocate will get to the bottom of this and ask whether the Canadian Security and Intelligence Service, CSIS, has any information that is held by someone who represents the interests of the detainee that would actually help the detainee. Professor Forcese put forward a good idea: if SIRC were involved, it would have a mandate to go through CSIS's cupboard of information.
SIRC is an important national resource. If this committee hears from SIRC officials in its deliberations, I would ask them whether they are in a position to take on this new task. We also have to remember that Justice O'Connor recommended an expansion of SIRC's mandate. To date, we have not heard from the government what, if anything, it will do in response to Justice O'Connor's second report. Whatever we do, we must observe the principle that Justice O'Connor articulated: As the responsibilities of the state increase, the review activities have to increase in a commensurate way.
SIRC might play a role with respect to disclosure, but I leave it to this committee to ask SIRC officials whether they are getting the resources they need. We know that CSIS is receiving many more resources, probably appropriately, but with those, the watchdog role of the Security Intelligence Review Committee becomes more challenging and, therefore, it should have more resources as well.
The last points I will address are more broad, and I have already reflected on number 4. We have a number of recent signs that the government has engaged in a pattern of over-claiming secrecy. This first begins with Justice O'Connor in the Arar commission. He commented explicitly on the initial claims that were made by the government with respect to secrecy and said that over-claiming secrecy is not a good course, in part because when you have real secrets, people will not believe you. We know that the government and the Arar commission disagreed on how much of the report should be made public. We know that was resolved by Justice Noël of the Federal Court. We know that Justice Noël did not agree totally with the Arar commission but did authorize the release of the majority of the disputed passages. We know that Justice Noël said that at least with respect to some of the material, the government was claiming national security confidentiality and that it did not establish the harm to national security regardless of the balance.
Recently, we had two decisions from Justice Mosley in the Khawaja case. The most recent came down on Thursday, May 1, 2008. In both cases, Justice Mosley found that the government, in respect of some of the information for which it was claiming national security confidentiality in the Khawaja case, was making claims that in some respects did not satisfy the standard of harm to national security. Justice Mosley reiterated some of those comments in his decision that came down last Thursday.
We also know that when the new security certificates were renewed under Bill C-3, the government made lots of information available that had been kept secret before. That is a positive development but suggests to me that there was over-claiming of secrecy in the past. We know from press reports when the new security certificates were filed that serious allegations have been raised about a number of these gentlemen. The point I make is that we are not in a position to judge whether those allegations are true. However, those allegations were secret before this new information was released. I suspect that the detainees did not know that CSIS was making those serious allegations about them.
I would like to see this committee, which has expertise in national security, raise this issue with the government. When such claims are made, you are vulnerable to the criticism that you do not understand what is going on and how important secrecy is. My position is that there are highly important things that need to be kept secret. Informers need to be kept secret, as do caveats and things we have promised other governments that we will not release. That was a large part of Justice O'Connor's point. Ongoing national security investigations are all, I believe, legitimate secrets.
However, I think we have gotten to a point where the whole concept of saying that there is harm to national security really needs to be both disciplined and rehabilitated. We need to start talking about the concrete harms that are caused by disclosure of secret information and not simply say that we cannot release this because it would cause harm to national security or, as under section 38, cause harm to international relations.
In its three-year review report, this committee made the valid point that international relations needs to be broken up. We do not say we are claiming secrecy because this would be embarrassing. Instead, we need to ask what the reasons are for the secrets behind the international relations label — i.e., caveats and restrictions.
We need to now do the same thing when it comes to national security. Parliament needs to at least give those who are administering this statute some kind of concrete markers of what looks like or is a legitimate secret.
I realize that facts change in different circumstances and that it may not be possible to have a comprehensive code. However, I do think we need some guidance. It started with Justice O'Connor, but it is not only Justice O'Connor; it is also Justice Noël and Justice Mosley. These are people with a lot of expertise who are down in the trenches. They are sending signals that the government is claiming secrecy too much. I am not sure how well the public is listening to these signals.
My last point is that we need to look at the issue of the long-term sustainability of security certificates. Parliament obviously has responded to Charkaoui and maybe has responded to all of the mischief that the Supreme Court identified with respect to adversarial challenge in Charkaoui. However, we need to look at whether the security certificates used against these five terrorist suspects are sustainable in the long term.
We have been using these security certificates against some of these detainees since 2001. I say that for a few reasons. One is that many of these detainees come from countries where, most of us would agree, if they were sent back, there is a substantial risk of torture. In the Jaballah case, which was not involved with Charkaoui, the Federal Court has approved that there would be a substantial risk of torture and said that it would not use the Suresh exception. If we are talking about sending people suspected of terrorism back to Syria, we have to bite the bullet and say, ``If we are going to do this, there will be substantial risk of torture.''
I agree with this committee in its three-year review report that, regardless of what the Supreme Court of Canada said in the Suresh decision, we do not want to send people into a substantial risk of torture. If you accept that — if you accept that the Suresh exception is closed down, or should be closed down, as I believe it should — then we are detaining these people without a reasonable prospect of them ever being deported.
At that point, it seems to me, we really have to ask ourselves how we can do this. Yes, they are non-citizens; yes, they do not have the unequivocal right to stay in Canada that a citizen would. However, how can we justify the very different treatment of these people, who are subject to indeterminate detention if they cannot be deported, compared to the treatment that an accused would get if that accused was charged with terrorism?
That goes back to the issue of how we do terrorism prosecutions and how we treat secret evidence. I will lay my cards on the table. Security certificates, with respect to these five gentlemen, are not sustainable. We need an exit strategy. Part of that exit strategy means that, if they are as bad as the government says they are, we need an ability to keep them under close surveillance. If they engage in any of the activities that are now a terrorist crime, an attempt or a conspiracy, then you charge them. It seems to me that both from the perspective of rights and from the perspective of security, the way you deal with terrorist suspects is to use the criminal law to punish or to incapacitate those people.
Although Bill C-3 has definitely made the security certificate process a bit fairer — and for that reason we should not denigrate it — I do not think it is a final solution in this area. I do think that most of these roads lead back to the issue of criminal prosecutions.
The Chair: Thank you, Professor Roach. You have given us many interesting points. I could not help but muse on your third point that we might have to go back and introduce a new definition in that section that henceforth SIRC will be covered inspectors. I could not help but muse on that.
Senator Segal: Thank you for the presentation. I appreciate your making the time available.
I want to refer to your last comment with respect to how the evidentiary rules of a normative criminal prosecution are, in essence, set aside for the higher calling of national security. That relates to the core problem of blending prophylactic national security activities, which are supposed to take place prior to a terrorist or other criminal activity transpiring, in protection of the state and the public versus the evidentiary criminal proceeding where information is gathered sufficient to lay a charge and then all the normative rights of due process, both for counsel and the Crown, relate thereafter.
Historically, it is fair to suggest that when politicians decide that something must be done, as for example the Chrétien administration decided in the wake of 9/11, they are usually told by senior officials, whether those are police officials or security officials, that if there is to be a sufficient prophylactic net cast in protection of the public interest, then we will have to do the following things. Even my worst partisan excess could not draw me to conclude that politicians around the table would suggest that we look at how to diminish people's freedom first and how to ensure that the rights of due process and presumption of innocence are crushed.
It strikes me that part of the difficulty here is that the government of the day — and I think it is the same for the present administration as its predecessor administration — is trying to have it both ways. On the one hand, they believed the first time these bills were drafted that they were Charter-proof, and they were profoundly wrong. They believe now that they have made the adjustments necessary to meet the Supreme Court test with respect to Charter. I suspect we will be sitting around this table in the not-too-distant future with court cases that will say they are profoundly wrong.
I put this to you as a proposition for your reflection: National security would be better advanced if someone brought in this kind of legislation, notwithstanding the Charter of Rights and Freedoms, and made it perfectly clear that there is a time limit, it is express and you cannot justify it. Failing that, we will be engaged in this activity for some significant time to come.
Canadians are great at looking down their noses at the Americans. Yet it strikes me that the young Canadian being held in Guantanamo has had a pretty vigorous defence from the Adjutant General and the various legal officers of the U.S. military who have acted on his behalf and petitioned at various levels to have him released and to have court cases quashed.
I do not get the sense from the provisions of Bill C-3 that, in terms of access to data, which will allow counsel to act on behalf of the client, we would give a person held under that certificate the same rights as are now being provided for Mr. Khadr by the Americans in the Guantanamo circumstance. I do not know why we as Canadians would feel comfortable with that.
There is a question there somewhere. I will let you find it anywhere you like.
Mr. Roach: This was something I wrote when Bill C-36 was being debated in October 2001. The Charter-proofing perspective is seriously deficient. I would say, with respect, Senator Segal, that whether it is Charter-proofing or Charter derogation, in a way this is too superficial an analysis to do when national security is at stake. It is almost too important to leave to the lawyers. What we really need to do is look at how these things operate on the ground.
The more that I look at what is publicly known about what is on the ground, the more convinced I am that in many of these areas we can do things better that will both protect rights better and protect security better. It may be that I am too much of an optimist about this, but we really need to look at what is happening on the ground.
I will return to your question of why these people were detained under security certificates. Obviously, we can only guess, but it was probably that decisions were taken that immigration law was the best tool to detain these people. I think most people expected that the detention would be fairly temporary and then they would be gone.
The last security certificate issued in these types of cases was in 2003. It seems to me that even if we assume, for the sake of argument, that those decisions were totally right when they were made, we still have to ask ourselves now whether they are totally right in 2008. Those are two profoundly different questions.
We need to have some tools to be able to deal with these people in 2008. When you look at what is happening in the Khawaja case or the Toronto case — and again we are all operating on the basis of partial knowledge — given what is publicly known, it is not terribly optimistic that we can use the criminal law.
We need to think about long-term solutions. We cannot simply lurch from court case to crisis legislation to court case to crisis legislation. Even though we do that, and everyone tries to do their jobs within that limited framework, we are not getting the basic job done. The basic job, as I would define it, is to protect the security of Canadians while respecting the basic human rights of those whom we suspect may be involved in terrorism.
[Translation]
Senator Nolin: I was waiting to hear your comments with respect to the fifth point you raised. To my mind, this is perhaps the key point of your testimony, namely that we have a regime of exception that does not appear to be based on sufficiently important guiding principles to warrant its continuation. Ultimately, this regime should be set aside because our principles of law are too important for us to allow them to be destroyed by these exceptional provisions.
[English]
That is the heart of my concern. Listening to your fifth item, I am not convinced that you are confident that we have sufficient guiding principles to strongly establish and convince ourselves that we must have a regime of exception where only some individuals in Canada can be subjected to that process — not citizens — and keep the Charter as a fundamental feature of our legal structure. If we are not able to answer that first question, the rest is a bit illogical.
Mr. Roach: I think that the Supreme Court of Canada made a mistake in Suresh when it said that maybe it would be consistent with the Charter to deport people to a substantial risk of torture. I think the UN has told us that was a mistake. By not sending Mr. Jaballah back to Egypt, the Federal Court in Jaballah has also effectively told us this is a mistake. The O'Connor commission, which talked about what torture is really like, told us this was a mistake.
Even if you accept that there can be, as you say, a regime of the exception or different treatment for non-citizens compared to citizens, once torture is taken off the table, then we have to start thinking about alternatives to the immigration law. The only alternative we have is the criminal law, in both its punitive and its preventive mechanisms. Many people say that criminal law with respect to terrorism is about prosecuting people after the bomb has gone off. I must reject that proposition. I tried to reject that proposition even when Bill C-36 was being debated. I teach my criminal law students about the laws of attempts, conspiracy and peace bonds.
I disagree with the unanimous decision of the Supreme Court. If the Supreme Court tells us it could sometimes be consistent with the Charter to deport someone to Syria or Egypt, where we know they will be tortured, with respect I say that the Supreme Court is wrong and the Charter is wrong. We should not do it. It is not the right thing. We all know that kind of treatment is abhorrent to our values, and we will not do it.
Once that is taken off, I really do think that we are back into the realm of criminal law, or we will invent some new regime that probably would apply to citizens or non-citizens.
I do not think what I am saying is all that radical. It is essentially what the British have gone through. After 9/11, the British said they would use immigration law and indeterminate detention of people they could not deport to Egypt, Syria or other places. The British felt so strongly about that after 9/11 that they used their version of section 33, which Senator Segal talked about.
The Belmarsh case, to my mind, is the most exceptional decision of the post-9/11 era. It is the Brown v. Board of Education of my generation. The House of Lords said this is discriminatory and not rational. It is not rational to think that immigration law provides a long-term solution to terrorist threats when you cannot deport someone.
The British have moved away from that and now have control orders, which are available for both citizens and non- citizens. They are finding their experience with control orders to be very difficult.
Post-9/11, much of what the Americans and British have done successfully is the hard work of criminal prosecutions. It is difficult. You will have to apply under section 38 and obtain orders that certain items will not be disclosed.
If we really have terrorists in our midst, we need to ensure that our criminal process is up to the task and that it can work. I worry that our criminal process is presently not up to that task. I think it is urgent that we recognize that the security certificates will not work with these particular detainees two, three or four years in the future. Many people would say that these people have been detained way too long now, but imagine if, in a couple of years, they are still there.
We must deal with the harsh reality that at some time there will be a day of reckoning. At that time, these people will be released and kept under surveillance. If they engage in criminal activity, they will be charged and prosecuted, and they will have the presumption of innocence and the requirement of proof beyond a reasonable doubt.
Senator Baker: Would you admit that in your quotation of the Supreme Court of Canada decision in Suresh you omitted the qualifying words ``in extraordinary circumstances'' or ``in exceptional circumstances''?
In Charkaoui, the Chief Justice of the Supreme Court of Canada noted in paragraph 82 that you, Professor Roach, criticized the conclusion of the Court of Appeal that such a measure is not constitutionally required. The Chief Justice goes on to quote you as approving of the special advocates system. After quoting you extensively from ``Ten Ways to Improve Canadian Anti-Terrorism Law,'' the Chief Justice said: ``This said, the U.K.'s special advocate system has also been criticized for not going far enough.''
Given the position that you have outlined, if our judges did not over-claim secrecy and if our prosecutors were more ministers of justice, as defined by Justice Martin years ago in Ontario, perhaps we would not have the problems we have with this present system. However, perhaps it will always be thus, and therefore one attempts to put something into the law to force the system to work.
You agree with the exceptions that you noted, those of protecting informers, of caveats, of national security and so on, and you say that this new system is not working because of the qualifying nature of the judicial system and Crown prosecutors.
In our present law, we have those checks and balances in the Canada Evidence Act, section 38, and in the Criminal Code, section 187. We also have a process in place whereby, under the Canada Evidence Act, the Crown prosecutor notifies the Attorney General, and the Attorney General can apply to the judge to exclude certain disclosure on the basis of national security.
In section 187 of the Criminal Code we have a complete code on how we protect informers' informations to obtain in warrants in sealed packets. That system is complete in itself. In other words, there is a blacking-out process for the offending sections of the disclosure. There is also a process between the Crown, the defence and the judge so that the defendant will know the case he or she has to meet. If the sworn information to obtain, which is sometimes 500 or 600 pages long, cannot stand on its own after the blackening-out, then the evidence cannot be used or cannot be applied in the particular instance.
My question is quite simple. What do you think of having the same system for what we are doing? Why do we leave to chance the proper disclosure of the case to be met while in our own domestic law we have had the Canada Evidence Act for 25 years and section 187 for 20 years? Have you ever thought about that?
Mr. Roach: Thank you for those questions, Senator Baker. It has happened to me in court that the other side will quote something that I have written. My usual response is, ``Surely my friend has better authority to rely on than that.''
Your point about section 38 and section 187 suggests that our existing criminal law system has dealt with many of these problems of secrecy, albeit in different contexts. There have been some terrorism prosecutions, but often with informers the cases are big drug conspiracies, for example. That does support the idea that we should not be afraid of thinking that our traditional criminal law is totally powerless to deal with the challenge of international terrorism. This is why, when Bill C-36 was first introduced, I said that we should first look at what the traditional criminal law is, which has always had a preventive dimension for conspiracies, attempts, counselling, and the like.
We need either to have more faith in our criminal law or to think of moving some of our expertise and discipline from the criminal law into the immigration law system.
I do not want to be misunderstood as saying that Bill C-3 is a failure. That is definitely not my position. These are very early days. I said at the beginning that I have been extremely impressed with the calibre of the people who have applied and have been appointed as special advocates. They are some excellent people. I think we want this system to work.
Bill C-3 introduces the concept of relevance. The entire course on evidence teaches the law of relevance. Before Bill C-3, there was really no concept of relevance in immigration law. Everything was relevant. The Maher Arar affair reminds us that when dealing with intelligence you need a disciplined concept of relevance. There is a difference between being seen with someone at a particular time and what lawyers would call evidence.
I see Bill C-3 as an attempt to bring some of that discipline and the learning of adversarial challenge, relevance and reliability. These are all traditional criminal law concepts, and this bill brings them into the immigration system, which is a positive development.
At the end of the day, if the ultimate remedy of immigration law is deportation, which I think we are all agreed this is about, and we are not willing to deport these people, even if we do the immigration law better, I am not sure that the end game will be worth it. We can have a more effective adversarial system, but a few years from now we will still have to deal with the issue of what to do with these people.
In the Jaballah case, which is the only case where we have confronted that issue, Justice MacKay said, as you pointed out, that the Suresh exception is only in exceptional circumstances, and this is not an exceptional circumstance. I do not see any differences on the public record between Mr. Jaballah's case and the other four cases, so if we are not going to deport him, then we will not deport the other four. Even if we play the game better leading up to the ultimate remedy, what do we do with these people?
Senator Joyal: You remarked that you would have liked to see in Bill C-3 a provision for a review after three years or five years. As a matter of fact, we discussed that around the table, but we knew that if we amended Bill C-3 and sent it back to the House of Commons, the House would not have time to adopt the legislation within the time frame given by the Supreme Court. The government, in its wisdom, has accepted that terms of reference be introduced in the Senate following a letter of commitment that we received from the Minister of Public Safety to the effect that we would start the review of the essential elements of the bill immediately and that we would report before the end of the year. Instead of waiting three or five years, we are, in fact, doing now what we would have been doing then — maybe not with all the information we could have piled up in three years, because case law would probably have been added to our information — and that is a thorough examination of the principles of Bill C-3. You have helped us today to start that.
That is not my main question. That is a comment I want to put on the record because it is within the framework of our work on Bill C-3.
When we adopted Bill C-3, there were comments on both sides of the table, and, if I may allude to Senator Andreychuk's approach, which I share, we recommended in our previous report tabled in February 2007 that a system of special advocates be contemplated. I am referring to paragraphs 7, 8, 9, 12 and so forth of the report. However, we were not absolutely convinced that it was the only systemic approach to a regime of exception. We are, after all, dealing here with a regime of exception. We are not within the confines of the Criminal Code, but we are in another regime; and, by definition, we are under an exceptional regime. We are not under the regime of the common law.
In Charkaoui, paragraphs 70 to 80 and then up to 84, the Supreme Court reviews at length two systems, the Security Intelligence Review Committee and the special advocate system. The Supreme Court has not pronounced in a definitive manner but has commented on both systems.
The fundamental question this committee has to decide is whether to keep the special advocate system, with the objective of improving it on the basis of suggestions you have put forward this afternoon. On the other hand, we are not convinced, considering the difficulty of bettering a system that is vitiated at its root, that we should not go with the other system that has proven to be effective, the SIRC system. I recognize, though, as you said, that SIRC is not gifted with enough resources for the task it has been charged with under the Canadian Security Intelligence Service Act.
This is a fundamental decision that this committee must first take. It is preliminary to looking into the nuts and bolts of how we could improve the special advocate system, because the Supreme Court has left us open. I quote paragraph 85:
Parliament is not required to use the perfect, or least restrictive, alternative to achieve its objective . . . . However, bearing in mind the deference that is owed to Parliament in its legislative choices, the alternatives discussed demonstrate that the IRPA does not minimally impair the named person's rights.
In other words, Parliament has left it for us to decide. The court discussed those two systems, but it did not pronounce on either of them. It stated that we certainly have the responsibility to do something.
There is an answer in Bill C-3. You outlined some weaknesses and defects in it, but at this crossroads of review, what is your fundamental position?
Mr. Roach: You are right, Senator Joyal, that the Supreme Court outlined a range of alternatives. As you say, SIRC and special advocates are the main ones, but they also discussed section 38 of the Canada Evidence Act, the Arar commission and the Air India trial, and it is perhaps regrettable that of all those alternatives, the one that the court recognized had been criticized the most was special advocates, and that is the one that is now adopted in Bill C-3.
The court has to be careful when it lays out these alternatives not to pre-approve any of them as necessarily consistent with the Charter. To go back to what I said to Senator Segal, it is not simply whether it is consistent with the Charter. The Charter is the minimum, but there is nothing that stops Parliament from having a better system than the minimum that is required by the Charter.
From what I have heard from knowledgeable immigration lawyers who have appeared before both SIRC and the Federal Court, we want to take a good hard look at the SIRC system. SIRC used to do the review of the security certificate cases. The fundamental difference is that SIRC, a little bit like the Arar commission, has a continuing mandate to be a watchdog over CSIS. Therefore, SIRC is preferable to special advocates, at least on the issue of disclosure, because SIRC has access to all of CSIS's documentation. If they had the resources and the inclination, counsel representing SIRC could say, ``Well, look, is there anything in CSIS's cupboard that is relevant to this case involving Mr. Charkaoui or whoever?'' Unlike the special advocate, counsel would not be limited either by having disclosed to them what the government is relying upon in this case or by having to go back to the judge to justify the necessity. Leaving the resource issue aside, the SIRC model is more powerful than the special advocate system.
I would also commend to you paragraph 78 of the Charkaoui decision where they discuss what happened in the Air India trial. Many of our allies, including the Americans and Australians, allow the lawyer representing the detainee to see the information, perhaps after having gotten a security clearance, but not share that information with their client. To my understanding of the recent decision by Justice Blanchard in the Federal Court, and I recognize this does not bind the presiding judge, I believe Mr. John Norris and Mr. Paul Copeland have been approved as special advocates in cases of people that they used to represent, and they will now no longer represent those people. They will become the special advocates. That system harnesses the likelihood that the person's own lawyer will probably know more about the case than the special advocate ever really will.
Perhaps we can mix and match these systems so that you could have something like SIRC, which would give you a much more powerful lever over the issue of whether there has been full disclosure, but perhaps also try to involve the accused or the detainee's own lawyer somehow in the process. This was very important during the Arar commission, and Justice O'Connor talks about it in his report where he said that his commission counsel would meet with Mr. Arar and meet with Mr. Arar's lawyers in order to get some input and also meet with the intervenors about what questions they should ask. This was after commission counsel had seen the secret information.
I do think we have to rely upon the integrity of our special advocates to do their very best not to be involved with any inadvertent disclosure of evidence. In both the SIRC system and the Arar commission, there have been no complaints that I am aware of that counsel was involved with inadvertent disclosure of the evidence.
The system chosen in Bill C-36 may not be the best system, but I think the fact that it was mentioned by the Supreme Court, and Senator Baker will cast some of the blame on me for the fact that it was mentioned, combined with the quotation that you read from the Supreme Court about Parliament's not being required to use the perfect alternative, means that Parliament may have actually so far in Bill C-3 opted perhaps for the less perfect way and that we would want to look at some combination of SIRC, the Arar commission, the Air India model, and the section 38 model, which is also different. Under section 38 the judge is allowed to balance the harms to national security against the need to disclose the evidence to the affected person.
All of these are material for a better solution, if Parliament can keep an open mind about it, but we are here debating legislation after it has passed, so I do worry a little bit that we have gone down the special advocate track and we may find it difficult to move onto the SIRC track, but perhaps that should happen.
Senator Andreychuk: Professor Roach, you have talked philosophically about many of these issues, and I will start with your last point about being perfect. You seem to imply that the SIRC model would be more perfect. I happen to think the opposite. We have studied SIRC as it might be injected into terrorism, but SIRC is there for many other purposes. Much of that tunnel vision working on the intelligence side alone as opposed to working on the rights of the accused has not been tested. While we say SIRC seems better to us in this narrow way, doing things the SIRC way may imbalance the situation for the other things that it is doing well.
I am not sure which system is more perfect. I have come to the conclusion that there is no perfect system. The Criminal Code is not a perfect system. It is a constant balancing between protection of society and prevention and denunciation and all of our sentencing principles, as well as the principles of guilt or innocence. It is laden with many concepts, many of which are competing.
I read the Supreme Court decision as a warning that tells us not to think that there is a perfect special advocate but to think outside. There may be another system as we evolve and know more about terrorism threats. In the meantime, we are told, if this is the model that you are working with, it has to be better than what you have right now.
Mr. Roach: Regarding your point about SIRC and the trade-off, Parliament is classically in the position to make that decision. Senator Joyal may be right, or the answer that I gave to Senator Joyal may be right. If you look just at the issue of review, SIRC may be a better system than special advocate, but unless SIRC is expanded or given more resources, the time that is spent on the security certificate cases will be taken away from the time that is spent on reviewing the activities of CSIS, and we know that CSIS has many more people working for it. The court cannot make that trade-off; that is a trade-off that Parliament has to make.
You do have this ongoing review, and Mr. Norris and Mr. Copeland perhaps serving as special advocates in cases involving their former clients is something I did not think of when Bill C-3 was drafted. I am not sure anyone thought of that when Bill C-3 was drafted. It does reveal that all of this is a work-in-progress. It is important that we keep talking about it and recognizing that although there may not be perfect solutions, there may be marginally better solutions. Bill C-3 is certainly better than what it was before. Could we have a better system? No doubt we could. As long as we go on and we are attentive to this, we may have a better system.
I do think there is now getting to be some urgency. To respond to a question from Senator Joyal, in some ways it may be better that this committee do its report by the end of this calendar year than three years from now. I would hope that in three years these cases will be concluded one way or another. These people have been in limbo and subject to detention and now house arrest for a long time.
Senator Andreychuk: Just as another point about whether we should have contemplated any other process or just gone to the Criminal Code, one of the worries when Bill C-36 came along was that Parliament had said no to many of the processes and procedures. When the context was criminal law or drug dealing, for example, we said that we would not take those extraordinary measures, but when terrorism came along, we said we would.
I continue to monitor some of those concepts to see whether they will slowly seep into the rest of our law. That is worrisome to me. I prefer to have it in your face; it is terrorism. That way we can scrutinize it better and not have it slipped into a section of the Criminal Code.
Mr. Roach: The concern about seepage is real. However, again, I would not necessarily assume it is the rights- invasive parts of the criminal law that we will have to use to get terrorism prosecutions. A lot of it is grinding out police and prosecutorial work, building a case against people and prosecuting them. The Americans and the British have prosecuted many people for terrorism since 9/11. They got some convictions, and there have been some acquittals.
We need to have that capacity because, in our democracy, the ultimate response to this activity should be governed by criminal law. It will not be easy, but we need that capacity.
Senator Andreychuk: With regard to the whole issue of security certificates, you have to look at immigration law. It was considered a privilege to come to this country. We were quite dismissive of people who landed on our shores, and we determined whether they were entitled to say. If not, we would ship them back or not let them enter our borders.
As immigration law evolved, the issue of national security arose. Security certificates came to be used, and it was seen to be rather progressive at the time. It provided a process for considering rather than dismissing out of hand. We developed processes that we think are better.
Following the process, it was at the point when we were about to return people who probably did not have a justifiable reason to stay in Canada that we found that we were putting them into what we considered intolerable situations, although obviously the countries they were going to did not think so. However, that also has been evolving, because more countries are finding themselves with that difficulty. Many countries that used to violate people's rights are signing international conventions that oblige them to comply with those rights.
There is a growing internationalism. In our report, we indicated that the answer to the security certificate is ultimately an international response, not a Canadian one. The UN has stopped short of tackling this. It was one of the items they were going to look at after 9/11 and it is being discussed somewhere, but countries are still wrestling with the issue. Britain is at a different point than we are.
Mr. Roach: I was asked to speak at a conference last year at Cairo University on anti-terrorism law. I am not sure how well it was received by my Egyptian hosts, but one of my messages was that in an era of international and global terrorism, how Egypt conducts its security policy has effects on Canada. Therefore, I agree with you that we need an international approach to these issues.
I think one of the sleeper components of Bill C-3 will be that the special advocates can challenge intelligence now on the basis of whether it was obtained as a result of torture or cruel, inhumane and degrading treatment. They probably will go to town on that. They will need help from experts in the particular countries, but it will be revealing to find out how much of the evidence or intelligence used in these cases may be excluded.
To its credit, Bill C-3 has a very broad scope. It is not simply a statement obtained from torture, it is any evidence obtained as a result of torture or degrading or inhumane treatment. We will find that other countries' systems will now be put on trial in our security certificate process.
Senator Andreychuk: This is a comment to the chair. We should look at where people have been to or could have been deported to in order to determine how many of those countries have signed their commitments not to use torture. We live by these international conventions, and we want Canada to live by them. Now we have an international responsibility to ensure that those who sign on also live by them.
The Chair: That is a fair point.
Senator Day: Professor Roach, given the objective that we are looking for security, have you come to the conclusion that the necessary or desirable means of providing security for people in Canada is to have two regimes, one regime for non-Canadian citizens and another for Canadian citizens?
Mr. Roach: Two regimes are required only to the extent that deportation is a realistic option. I could imagine a role for immigration law in removing people to places where it is safe to remove them in fairly short order. Once a non- citizen is detained for years and will not to be deported, then it looks and smells like a criminal process.
Senator Day: We can deal with deportation and whether it is to an area where the person is likely to be tortured.
My second question relates to your comment that we are risk-averse. I would like you to expand on that. You were discussing the government's tendency to over-claim secrecy, which is perhaps in part because Canada is a net importer of intelligence. I would like you to put that in the context of Bill C-3, section 83(1.2)(c). That is where you said there is a risk of inadvertent disclosure of the secret information.
You felt that test should be tighter, and I made note of that. However, I am not sure how that subsection (c) would work when we are talking about the person having knowledge of information. That person would be the special advocate, and if that person is appointed as a special advocate, there is a risk that information may be disclosed inadvertently. Can you explain how that would work and how it fits into that concept?
Mr. Roach: Many of the special advocates had security clearances before they were appointed in that capacity and would have come across national security information in various ways. Some of them acted as commission counsel, and some were counsel for SIRC. Therefore, I think subsection (c) is there for the judge to say that even though the detainee wants person X, the judge cannot appoint person X as the special advocate because that person already has some information, and there is a risk of inadvertent disclosure of that information when the person talks.
My point is that we are too risk-averse. I think we have to rely on the integrity of the special advocates, who are already permanently bound to secrecy under the Security of Information Act. We should assume that they will be very careful when they talk to the new clients for whom they have been appointed special advocates, that they will not blab secrets that they heard three years ago on other retainers.
Lawyers have to keep other people's confidences all the time. It seems a little odd to say we trusted you with a security clearance when you were acting for this commission, but we will not trust you with the security clearance now because you will act as a special advocate for a security certificate detainee. If they were trustworthy then, unless some change has led to the withdrawal of their security clearance, I would think that we would have to rely on their judgment at another time.
I would have removed subsection (c) and simply assumed that we can trust special advocates. If it was not removed, I would at least say there has to be a serious or a substantial risk. I see it as this metaphor that we are overly secret. I do not know all the reasons why we are overly secret; but I think one of them is that we are very worried about leaking other people's secrets. We are reliant upon British and American intelligence. However, I think we have to design these systems and have faith in them. We have to convince our allies that these are serious systems.
The British have special advocates. We are not worried that information we have given to the British will somehow be leaked by their special advocates. The Americans give security clearances to lawyers who represent people accused of terrorism. I do not think we are particularly concerned about our secrets being leaked. However, we must be prepared to show our allies that this is a very serious system and that we will do everything we reasonably can to protect our secrets and their secrets.
Senator Day: Do you have any knowledge that this subclause is in there for that reason, to ensure that we can continue to gather intelligence from our allies?
Mr. Roach: This is often cited as part of the government's claims for secrecy, that if this is not kept secret, the tap will be shut off. It is very difficult to know how to evaluate that claim that the government makes.
The Chair: In the article you wrote for the Institute for Research on Public Policy called ``Better Late than Never,'' you raise an item that some of us have thought about reviewing, since we have a mandate to look at the broader issue.
You have a section there on the political, religious and ideological motives and the definition of terrorist activities. You point out that ``the Senate committee recognized that simply striking down the political and religious motive requirement could create problems of over-breadth by targeting virtually all serious violence against persons or property as terrorism.''
You note that the Senate committee recommended that the CSIS Act be amended to include only violence designed to influence governments to act or to intimidate the public. Then you say:
There is a danger, apparently not considered by the judge in Khawaja, that simply removing the political or religious motive requirement will expand the definition of terrorism to encompass all international violence.
You point out:
Strangely, the Senate committee did not address this danger with respect to the Criminal Code definition of terrorist activities as amended by the decision in Khawaja, even while it recognized the same problem with respect to the CSIS Act.
Let us step back a bit and look at the issue in a broader sense. A theme we heard repeatedly from witnesses, primarily from within the Muslim community, was that the political and religious motive was just a formula to enhance and push for racial profiling. They felt very strongly about that. Another school of thought asked if there really is terrorism, how relevant is the motive. Do you put an additional onus on them?
I note your reservations and your not great enthusiasm for it, but to deal with this issue of the definition in a broader sense, what input would you like to give us? Quite frankly, we were very concerned by the racial profiling that seemed to be generated by this definition. It might also put them in a straitjacket in terms of getting evidence to put it in that category.
Mr. Roach: I agree with Justice Rutherford's decision in Khawaja as far as it goes. I have written extensively that political, religious or ideological motive is not required.
My only point is that Justice Rutherford could only strike things down from the Criminal Code. The rest of the definition is so broad, as I read it now, that a robbery could be a terrorist activity because it would be committed with the purpose of compelling a person to act.
I think the fix here is relatively simple. The recommendation that this committee made with respect to the CSIS mandate should also be read into section 83.01 of the Criminal Code, so that it would be acts that are intended to intimidate the public or compel governments or international organizations to act. If you had a definition of terrorist activity that more or less tracked that — take out the reference to compelling persons that is in section 83.01 — I think you would have a pretty solid definition of terrorist activity.
The Chair: We can conclude that you are comfortable with it if we follow that. That was not quite clear from your article, but that was the conclusion that we came to, and you seem comfortable with that.
Mr. Roach: Yes.
Senator Nolin: Mr. Roach, I want to go back to the sustainability of the security certificate scheme. Do I understand that you do not advocate that scheme for terrorism activities?
Mr. Roach: I think that is right.
Senator Nolin: If you want time to reflect on the answer and write to us, I would appreciate that.
I want to understand what the principles are that are used by those who are advocating such a special scheme to get to terrorism. It will help me, because it is the first ``why'' of the direction. Do we go left or right?
Mr. Roach: The principle, as I understand it — and you see this in the Charkaoui decision — is that non-citizens do not have a right to remain in Canada. Section 6 rights to remain in Canada apply only to citizens. Therefore, if non- citizens are a threat to national security or involved in serious criminality and so on, Canada has a right to remove them.
That is okay as far as it goes, but my point is that we will not be able to remove these people unless we are willing to remove them to a substantial risk of torture. Once we have confronted that, then we go back to my position that we cannot use immigration law as a substitute for anti-terrorism law.
Senator Nolin: Are any features missing in the body of the Canadian criminal law system to give us the flexibility and capacity to achieve the same objectives?
Mr. Roach: When I testified before the Air India inquiry in December last year, I presented a paper that makes the argument that our criminal law system needs to allow the trial judge to make section 38 determinations of disclosure in respect of national security. That is the way the Americans, Australians and British do it. If we were move to that system, we would not see judges having to make decisions, as we saw in the Khawaja case, before the trial has even begun.
Senator Nolin: It should be a more inquisitorial system, like they have in France.
Mr. Roach: The British looked seriously at the more inquisitorial route with investigative magistrates. I do not dismiss that out of hand, because I am interested in comparative legal systems. However, it would be an odd fit with the Charter of Rights and Freedoms.
With one relatively minor change that would allow the trial judge to see all of the secret information in order to determine what has to be disclosed so that the accused can receive a fair trial and what does not have to be disclosed because it is not essential for the accused's fair trial, our criminal justice system would be just as capable as the justice systems of our allies of dealing with these cases. That is not to say it will be easy; these will always be difficult cases, but that is one glaring problem we have in our criminal justice system.
Senator Nolin: Would you let the lawyers of the accused persons have access to the same information?
Mr. Roach: I would let them have access to the same information if they had a security clearance and there was an undertaking that they would not share it with their clients unless there was judicial authorization, or I would allow special advocates to participate in the section 38 proceeding, which we have not talked about.
On Bill C-3, this committee recommended that special advocates be used whenever secret information is presented with the other side not present. Bill C-3 deals with it only in immigration law. Justice Mosley has appointed two special advocates under section 38. Even though Bill C-3 does not include it, we are seeing special advocates used for more than is contemplated on the face of Bill C-3.
Senator Baker: Regarding the definition under section 83, have you noticed that by taking out the offending words from the specific subsection of the definition but leaving in what the Crown identified as the qualifier ``for greater certainty'' in the definition, one is left with a strange definition of ``terrorist activity''? Religious and political purposes are still in the definition but as a former qualifier of what has been removed. Of course, the Supreme Court of Canada has rejected an appeal on that.
Let me see if I understand what you have been saying. Currently the special advocate would have to apply to the judge of the court for permission to disclose and discuss anything that he or she has seen. Some would suggest that in many cases it would be practically impossible to obtain that permission. Permission would not be granted. However, at that stage the special advocate is transposing a process that is found under the Canada Evidence Act and in section 187 of the Criminal Code such that the offending information that you do not wish disclosed is omitted. However, the person who is being held would understand why they are being held, which answers the objection held by the Canadian public to this legislation. We cannot have a police state in which someone is simply grabbed and not told why. That offends the basic premise of our law. You are suggesting that that system in the Criminal Code and the Canada Evidence Act be transposed into that section so persons being detained and their lawyers can have at least some idea of why they are being held. Such a provision is not available now.
Mr. Roach: That is right. The big difference between the immigration law and the criminal law approaches is that the immigration approach relies upon secret evidence. Under the criminal law approach, the accused and his lawyer are present when all of the evidence is introduced. Of course, there can be applications to edit information out, but that information then is not used against the accused. Under this system, everything that is edited out or that the person named does not see is used against him. Bill C-3 is important as far as it goes because it allows someone to challenge the secret evidence. However, secret evidence is not used in our criminal justice system, and I hope it never will be used.
Senator Baker: To answer the objection, the detainees would know the case they are to meet or why they are being detained. You would suggest that the current written procedures under the Criminal Code at section 187 be transposed into the present system that we have with Bill C-3 to make it workable and to answer the objections.
Mr. Roach: That is right.
Senator Segal: Professor Roach, what is your perception of the difference that is created in section 77 between a permanent resident and foreign nationals on one side of the fence and citizens on the other side of the fence. A permanent resident can be a lawful resident of Canada for decades, paying his or her taxes, observing all the laws. In this bill, for what it is worth, I take the remit of this committee to look not only at the special advocates part but also at the entire bill and offer advice on that.
First, does that cause you any grief? Would you be more comfortable with a recommendation that suggested some gradation on that scale, as opposed to saying that an individual is either a citizen or susceptible to this kind of removal?
Second, the same section 77 says that the minister and the Minister of Citizenship and Immigration shall sign the certificate stating that a permanent resident or foreign national is inadmissible on a relatively long list of grounds, including security, violating human or international rights, serious criminality — and here I think of our Chinese friends who make constant allegations about serious currency crimes by people who are doing business in Canada; they suggest that that is serious criminality from their perspective — and organized criminality. For that last one, one might say that anything done by more than two people in a criminal conspiracy constitutes some measure of organized crime.
On that particular provision, you said we could be of greater service to the process by zeroing in on national security, which was, after all, the intention of this process. I point out that the provisions upon which the certificate can be issued are quite extensive in that section. However, in section 81, the provisions upon which a warrant is issued for the arrest of someone who has not shown up after a certificate has been issued is actually limited to danger to national security or to the safety of any person. It is not the same list, if you wish, as exists in section 77.
I also note in section 81 that the warrant is not being issued by a judge, the person who normally issues warrants in a free society of laws and equality before the law. It is being issued by a minister. Despite my great affection for ministers of the Crown of all political affiliations, I would feel more comfortable if warrants were issued in the normal way by judges. As we know from recent events, judges are given sealed documents and factums upon which they choose to issue a warrant. Those get released when the judges choose to release them.
Mr. Roach: Your point on section 81 is well taken, Senator Segal. It is not only a minister as opposed to a judge, but it is a minister who has already signed a certificate saying that you are guilty. I agree with the point about section 81.
I will speak to your second point about the grounds on section 77. The Supreme Court of Canada had upheld this provision in the Chiarelli case in 1992, which dealt with allegations of organized criminality. If it is about national security, then probably it should be reduced.
Senator Segal: Certificates predate 9/11.
Mr. Roach: It should be reduced to national security. That said, given the present focus — or even if we went back to 1985, thinking about Air India — if you narrow it down to security, you will still be confronted with the issue that many non-citizens whom we might suspect of being threats to national security will come from countries to which we probably cannot send them back without running substantial risk of torture.
The security certificate worked fine for the alleged Russian spy. That person was in and out I think in a matter of months, if not weeks. This is a trickier problem.
The last point that you raise is the issue of permanent residents or foreign nationals. I do not think the Supreme Court has said that you cannot distinguish between the two, but rather that the different treatment between the two was so glaring under the former law. One person got a review of their detention within 30 or 60 days, I believe. The other person could have to wait years until their certificate was upheld as reasonable.
The Supreme Court does not say that you cannot make that distinction. I think what the Supreme Court says is that if you make that distinction and it affects liberty, you must have a good reason for the distinction. They found that the government had not put forth really any justification.
Senator Segal: Would you, in your wisdom, give us advice as to what we might consider to prevent the following from happening. I work on the assumption that officers of the law — peace officers, security officials — work in good faith to protect the country and do not, for anything other than the most pressing purposes, push the envelope of how the law might be used. When I look at this legislation, I am troubled that, in an investigation where the police are not having success, the threat of certificate is used to intimidate.
We have seen in the past in a large drug prosecution, raids across the city, headlines, everyone gathered up, and then the actual date for the court case comes and a lot of stuff falls apart. There is insufficient evidence and a small number of people are charged. I assume it is because the police thought the best way to proceed was the way they did.
I do not think any of us would want to be part of a circumstance where legislation was being used to intimidate with detention that is essentially very hard to disengage from. All the principles of habeas corpus have been set aside in the process of making a tough investigation easier. I do not think that is our view — certainly it would not be my view — of how the law or the decisions of Parliament should be used. I do not think it is the Supreme Court's rule.
Mr. Roach: I agree, Senator Segal. This goes back to the government's silence on its response to Justice O'Connor's second report. That report came down in 2006. It said that the existing Commission for Public Complaints Against the RCMP had inadequate powers. The former commissioner, Ms. Heafey said that. The present commissioner has also expressed that view.
We need robust review both to detect abuses and to respond to allegations of abuse where there has been no abuse. Public confidence also cuts both ways.
Senator Joyal: If I follow your suggestion on the whole of all the comments that you have put forward this afternoon, you would advise us to keep the special advocate regime but try to review the process in a way to bring it as close as possible to the normal criminal justice rules. In that context, what are the fundamental changes that you would suggest to us to bring to Bill C-3?
On the basis of what you have seen of the selection of the special advocates, you seem pleased that they have chosen lawyers who have already represented some of the persons named in the certificates.
Which of the elements of the present system, as defined in Bill C-3, could be improved upon or adapted to bring them closer in line with the normal criminal justice procedure?
Mr. Roach: The most important would be ensuring that there is full disclosure, either through the special advocate or, perhaps, using SIRC for this limited purpose of being able to examine files in order to see if they have possible relevance to the person's case. That is probably the most important thing.
Second, we need to be very strict about what the harm to national security is that justifies not disclosing the evidence at least to the affected person. As I said in my opening statement, there have been enough confirmations now that we need to articulate exactly what it is we mean by ``harm to national security.'' If that harm standard is not satisfied, then the evidence should be available to the detainee and the detainee's lawyers.
Nothing restricts your ability to tell the detainee and his lawyers that they can see this information, but they have to come to a secure facility or they can only make limited copies or maybe they cannot speak to the press about it.
We need to focus both on the issue of disclosure and on the issue of pushing out into the open all that can be made available so that the detainee knows the case as fully as possible and can challenge the government's case against him.
Senator Joyal: The point, then, is the capacity of the detainee to know all of the elements of the proof that are available so that he can prepare a real defence.
In your opinion, it is in the context of the disclosure, the secrecy and the evaluation of the limits of that secrecy that you feel there are in this bill some defects that could be improved upon?
Mr. Roach: Yes.
Senator Joyal: When the House of Commons of the United Kingdom commented on the defects or weaknesses of the special advocate system in Britain, they underlined, as the Supreme Court stated in paragraph 83, that they have no power to call witnesses. In your opinion, is this a significant deficiency in the evaluation of the security aspects of the proof or rebuttal of the allegation that intelligence may want to keep out of reach of the detainee?
Mr. Roach: Yes. Special advocates should be able to call witnesses if they are relevant to rebutting the case against the detainee. I see that as part of the issue of disclosure as well.
Senator Joyal: What about the resources they have at hand?
Mr. Roach: I think Bill C-3 deals with that fairly adequately. Obviously you will want to talk to some special advocates during the course of your studies. I do think that Bill C-3, at least in statute, provides that there will be adequate facilities for them.
I should confess a conflict of interest. I know there has been training for special advocates, and I was asked to be one of the trainers. Perhaps I have a conflict of interest there. That is something that the special advocates will know better. I do not think there is anything, on the face of the legislation, that suggests that special advocates will not be appropriately funded.
Senator Joyal: I understand you have suggested that the special advocates could have much wider opportunities for contact with defence lawyers than what is provided in Bill C-3. The bill seems to define it very narrowly. Going back to the judge to request authorization frames it more as an exception than as a normal rule applied to normal criminal procedure.
Mr. Roach: That is right. If we are going to trust the special advocates with the secret information, we should recognize that the special advocates should be able to deal with a large number of people — not only the detainee and the lawyers, but if they call witnesses they will have to talk to them. We have to rely on their judgment not to reveal secret information.
Senator Joyal: In item 8 of our report of last year we recommended that the government establish clear guidelines and policies to ensure the secrecy of information in the interests of national security. It seems to go along the same lines of what you have said. In fact, the claiming of national security becomes a buzzword. You just have to claim national security or endangering international relations and, bingo, you are under total secrecy. It seems to me it would be best for the government to qualify conditions under which a judge could review in a much clearer context than just a general claim of national security or endangering federal-provincial relations, as we had in some other statutes. You will remember the one in which, if a government did not want to disclose anything, it had only to claim that that was the case. Senator Segal will remember that at that point in time it was the key to lock everything.
There must be a balance somewhere, and a neutral arbitrator should be in a position to determine that. Of course the consequences on the rights of the person are tremendous. It seems to me that that recommendation we put forward is along the lines of what you have suggested today in relation to disclaiming national security in cases where the court seems to come to the conclusion that it must be defined in a much stricter context.
Mr. Roach: It is imperative that we flesh out not just what national security means — because that will be very difficult to define — but at least provide concrete examples of what are legitimate secrets. There is evidence that we have been claiming secrecy on things that a judge does not think should be so secret.
Senator Joyal: The Charkaoui case is a clear illustration, as you have stated. Once the government adopted Bill C-3, they released a certain amount of information. We heard from some of the persons who were the subject of a certificate that they are served with one objection. Once that objection is dealt with there is a second, third and fourth objection. In other words, there is never full disclosure to a neutral authority of all the elements they claim to have against a person. It is more or less a striptease of information: if you do not like that argument, we have another one; if you are not swayed by this point maybe you will be swayed by another.
It seems to me that we are reluctant to be involved in that kind of abuse of the use of exceptional powers, because it amounts to that to a point. In reviewing Bill C-3, would you suggest that we address that in the body of the legislation?
Mr. Roach: Yes. There is a reference to harm to national security and other persons. I think you should ask government witnesses how they would define what ``national security'' means and have them give concrete examples. They would probably come up with some concrete examples, but that would add a real discipline to this process of claiming secrecy.
In that respect, Justice Noël, in his decision in the Arar commission matter, tried his best to define what ``national security'' means, but I think he found it to be a very difficult idea. We need concrete examples of what could be a secret.
In some ways ``harm to other persons'' is a good start, because that has a more concrete edge to it. If you say, ``Okay, if we disclose this someone could get killed,'' we can at least talk about that. However, when you say, ``If we disclose this there will be harm to national security,'' people will be cynical about that, rightly or wrongly.
The Chair: On behalf of our committee, professor, I would like to thank you very much for your input. It has been very helpful. I hope you will stay for another five or six minutes and give us input in camera on further witnesses. Perhaps our steering committee can meet for five minutes.
We had a meeting just before this session today, and we have given some suggestions to the clerk. We should know within a day or two whether we will be able to meet next Monday. That depends on witness availability, so we will let members know as soon as possible.
The committee adjourned.