Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 6 - Evidence - Meeting of May 12, 2008
OTTAWA, Monday, May 12, 2008
The Special Senate Committee on Anti-terrorism met this day at 1:30 p.m. to study 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: We are pleased to have with us today Professor Hamish Stewart from the Faculty of Law at the University of Toronto and Professor Craig Forcese from the Faculty of Law at the University of Ottawa.
Introductory remarks of about 10 minutes each would be appropriate. We have a biography of Mr. Stewart who has a doctorate from Harvard and Mr. Forcese studied at Yale University. Therefore, we have a high-end crowd appearing today.
Hamish Stewart, Professor, Faculty of Law, University of Toronto, as an individual: I thank the committee for the opportunity to appear. My particular areas of scholarship and teaching are criminal law and the law of evidence. It is with that background that I first read cases arising under the security certificate scheme of the Immigration and Refugee Protection Act.
The first time I saw one of these cases was reading it in a law report. I was surprised to learn this procedure was even available in Canada and, as I read the case further, I was more surprised to learn how it was conducted procedurally. Coming from my criminal law background, it looked like these allegations were of a criminal nature and as though the consequences for the person named in the certificate were of a criminal nature. The person named was detained potentially for an extremely long, even indefinite, period and, if released, that release would be only under strict conditions.
This case looked like criminal law to me, but it is not because it is in the Immigration and Refugee Protection Act, IRPA. When I first encountered these cases, I thought the procedural guarantees for the person named in the certificate would be high.
That leads me to the two areas I want to discuss. First, I want to speak briefly about what I called in my written submission, the premises underlying the security certificate scheme — why do we need this scheme at all. Second, I want to speak to particular aspects of Bill C-3.
On the premises underlying the scheme, if we need the scheme at all, it must be because there are non-citizens inadmissible on grounds of security that for some reason cannot be dealt with adequately or handled through ordinary procedures of immigration law and criminal law. If the allegations against these perceived security threats could be dealt with through the ordinary processes, we would not need the security certificate scheme.
The second premise appearing to underlie this scheme is that there is information that the government wants to do two things with. First, it wants to use the information against the named person but, secondly, the government also wants to keep the information secret. If we did not have that feature, we probably would not need the security certificate scheme.
As an academic who does not practice and has never practiced law nor dealt with these matters in a practical way, I admit it is hard to know whether these propositions are correct. However, it is worth pointing out that they must be correct to need the security certificate scheme. Although I cannot be sure whether they are right or wrong, I have my doubts they are correct.
With respect to the first premise, there would be advantages to using the criminal trial process to deal with the kind of allegation we have seen in these security certificate cases rather than dealing with them through an immigration proceeding. If we look at the jurisdiction-conferring provisions in section 7 of the Criminal Code, they give expansive jurisdiction to Canadian trial courts to deal with terrorist offences no matter where the conduct occurs in the world.
I am not sure they give our courts jurisdiction to deal with any allegation of terrorism any time, anywhere. However, they are broad and the allegations made against the people detained under security certificates probably fall within that jurisdiction.
Proceeding in that way would have a number of advantages. Instead of being subjected to this rather odd procedure under the security certificate scheme, the person would have all the usual protections we have in criminal law. At the end of the proceeding, we would know whether the person was guilty or innocent of the allegations to a high standard of proof. If convicted, the sentence would be significant, but at least determinate as opposed to the indefinite detention under the IRPA.
On the second premise, secrecy of information, this premise is difficult to assess as someone who does not practice law. My concern about the use of secret information in this way is that it is unchallenged in an important way. It is difficult to challenge precisely because it is secret. Therefore, it can seem to mean much more than it actually does in the mind of the decision maker. That feature of secret information was central to the problems the Supreme Court of Canada identified in Charkaoui.
If these two premises are correct then, yes, we need the security certificate scheme. If they are not, we do not need it. I cannot tell you whether they are true, but it is helpful to bear in mind the underlying assumptions of this scheme.
My second area of discussion relates to particular points in Bill C-3, the government's response to the Supreme Court decision in Charkaoui. Accept for the sake of argument that the security certificate scheme is something we need, that it is an appropriate way to deal with non-citizens suspected to be security threats to Canada, and that the government has a valid interest in keeping some of this information secret. What are the problems with the security certificate scheme?
Under the former scheme, the Supreme Court said that process for determining the reasonableness of the certificate was so unfair that it was constitutionally deficient. Specifically, the court said that the scheme did not satisfy the ``case to meet'' principle, a principle of fundamental justice under section 7 of the charter. That principle is the requirement for a person affected by this kind of an allegation to know the case put against him or her and therefore they are able to respond to the case put against him or her.
The court recognized the government's legitimate interests in keeping information secret and, therefore, did not say it was necessary to give the affected person all the information. Instead, the court said that either full disclosure must be provided or what it called a substantial substitute for this kind of disclosure must be provided.
Bill C-3 attempts to provide this substantial substitute by a system of special advocates. I looked at the testimony this committee heard in February. Therefore, I know you have heard a lot about special advocates. I am not sure I have much to say that is different from what you heard, but let me make a quick point about the special advocate.
The special advocate is supposed to receive all the information and other evidence provided to the judge but not disclosed under the statute. The special advocate is given an important role in the proceedings in dealing with this evidence when the person named in the certificate is absent. However, once the special advocate has received the information, the statute says that the special advocate may communicate with the person only with the judge's authorization and subject to any conditions the judge considers appropriate.
Undoubtedly, there will be a constitutional challenge to this scheme and it will focus on this limit.
Given this limit on the special advocate to speak to the named person without authorization from the judge and without functioning under conditions imposed by the judge, is the special advocate a substantial substitute for the provision of information directly to the detainee and detainee's counsel? It is difficult to know the answer. In February, this committee heard many witnesses say that the scheme is unconstitutional. I am tempted to agree but we need time to see how this system works out in practice and how severe these constraints are on the special advocate's role. Some people who have been put on the list of special advocates are excellent lawyers with a great deal of experience in this kind of work. As time passes, they will be able to tell us whether the system works. At least they will be in a position to provide an evidentiary basis for determining whether the system works. Will the detainee be able to respond effectively to the secret evidence in some way through the special advocate? If so, then the system will be found to be a substantial substitute and will be constitutionally upheld; if not, it will not be upheld.
A final point about the special advocate: Even if the special advocate system can scrape by constitutionally and barely satisfy the demands by the Supreme Court of Canada for procedural fairness in this area, I do not see why Parliament did not provide a more robust special advocate model in Bill C-3. The job of Parliament, one might think, is not to satisfy the minimal requirements that the Supreme Court of Canada has imposed but rather to put a good system in place. Mr. Forcese has had more to say in the past about other special advocate models. My understanding is that the special advocate model under the Security Intelligence Review Committee, SIRC, process is not as limited as the model in Bill C-3 and would almost certainly have passed constitutional muster with the Supreme Court of Canada. It is unfortunate that the model was not incorporated into Bill C-3 rather than the restricted model that was put in place.
I will turn to the last item I wish to discuss. Two aspects of the security certificate scheme that I, as a legal academic and as a citizen, found to be a matter of great concern were not addressed in Bill C-3. That is unfortunate because Bill C-3 was an opportunity to do something about these features of the scheme. It was a missed opportunity.
First, the security certificate scheme permits a person to be detained indefinitely, although it does not say that a person should be detained indefinitely. The underlying assumption seems to be that the person will be released but there is no limit in the statute as to how long a person can be detained. There is no sense in the statute that the longer the person is detained the more likely it will be that the person will be released. Indefinite detention without any judicial determination that a person is a threat to the security of Canada is extremely troubling. I wish that Bill C-3 had modified the statute in some way to make it easier for detainees to be released the longer they are in detention, or something that would reduce the possibility of someone being indefinitely detained.
Second, as it stands, the act permits deportation of a person who will face torture or cruel or inhumane treatment in another country. In Suresh, the Supreme Court of Canada said deportation under those circumstances perhaps would be acceptable in exceptional circumstances. Again, whether the Supreme Court will stick to that position when faced with a person who is being deported to face torture is another question. Whether the court will stick to that exception, it would have been desirable for Parliament to act by statutorily overruling the Suresh exception; to make a commitment not to deport people to face torture, no matter the security threat; and to find another way to control that security threat. In that sense, I echo the comments of Alex Neve, Secretary General, Amnesty International Canada, who appeared before the committee last February. Do we need the security certificate scheme? Maybe; I am unsure. Bill C-3's special advocate system might not satisfy the constitutional requirements laid down in Charkaoui. However, even if it satisfies those requirements, a more robust system would have been desirable.
My last point is that some problems with the scheme could have been fixed while it was before Parliament in the form of Bill C-3; and it is unfortunate they were not fixed.
Craig Forcese, Professor, Faculty of Law, University of Ottawa, as an individual: Thanks for having me here to discuss Bill C-3 and its aftermath. I agree with everything that Mr. Stewart has said. I will attempt to amplify some of his comments. I will talk about three things: first, the detention and conditional release under Bill C-3, section 81; section 83 and the nature of the disclosure, not to the special advocate but to the named persons; and section 83.4 and the restriction on communication by the special advocate after seeing the secret information. I do not want to duplicate comments that you heard in February so I will go beyond those comments.
The detention provisions in Bill C-3 codify a practice of the Federal Court that has evolved over the last several years. Bill C-3 and the prior incarnation of the security certificate process allow detention of persons subject to a certificate when a warrant for detention is signed. The Federal Court practice emerged to review that detention and potentially to allow the person to be released under strict conditions and practice if the Federal Court views that release subject to conditions as consistent with national security. That provision is codified in section 81 in sequence.
Mr. Stewart has identified the problem with that provision. The detention and release subject to strict conditions is not formally tied to an extant removal proceeding. In other words, the nominal expectation is that an individual is detained pending deportation but if that deportation falls off the rails for whatever reason, nothing in the Immigration and Refugee Protection Act precludes the detention from potentially persisting indefinitely. The language of the statute is clear in that as long as the person is viewed as a national security threat, that person can be detained under IRPA.
How and in what circumstance might a person be subject to a security certificate who is no longer subject to a deportation order? Let me propose that, probably in the next 6 to 12 months, we will encounter such a circumstance whereby the efforts to remove one of these individuals will fall apart on grounds under section 7 of the Canadian Charter of Rights and Freedoms — the fear of torture issue.
If removal to torture is impermissible, the IRPA permits them to be detained potentially indefinitely or subject to release under strict conditions. This situation could turn into an immigration law-based system of indefinite detention of foreign nationals. On this issue of Suresh and the exceptional circumstances in which a person could be removed to torture, the Supreme Court has signalled that it would not allow such a removal to torture. In R. v. Hape, the decision one year ago indicated that the Charter, in most instances, is to be interpreted in a consistent manner with Canada's international obligations, which are emphatic that we cannot remove to torture. If the Supreme Court meant what it said in Hape, there can no longer be a Suresh exception.
The closest analogy to this system of indefinite detention that would be available for a citizen would be a peace bond under section 810.01 of the Criminal Code: a detention without a criminal prosecution, or something close to it. A peace bond does not allow incarceration but it could allow a person to be subject to stringent conditions. If the so- called ``preventive detention'' provision from the Anti-terrorism Act is re-enacted, it would be another vessel available for the government to place conditions on the actions and behaviour of a citizen.
The difference between the Immigration and Refugee Protection Act regime and the system available under the Criminal Code — the peace bond system — is that the peace bond system does not allow outright detention and, more than that, the peace bond system is in open court. There is no secret evidence. IRPA would allow detention and serious conditions on release subject to secret evidence. The Canadian Criminal Code, which will be applied to citizens, would not.
That situation is an invitation for a section 15 equality rights Charter challenge, one ducked by the Supreme Court in Charkaoui. We are setting up the possibility that the issue will go to the Supreme Court. The Supreme Court will say we have a separate and more draconian indefinite detention regime for foreign nationals.
The United Kingdom immigration law, until recently, allowed indefinite detention of foreign nationals. However, the House of Lords said it was anathema to a civilized society. More than that, it was never demonstrated that foreign nationals are more dangerous than citizens. Therefore, the U.K. law is inconsistent with the European Convention on Human Rights. In the wake of that argument, the United Kingdom government passed ``control orders,'' a system of draconian limitations on liberty applicable to both foreign nationals and citizens.
In essence, we are walking down the same path, albeit in slow motion. In the next year or two, this committee may confront this issue.
I am not sure I have a solution to avoid that conundrum. I think there should be a ``squeal point'' in the immigration law where the detention is indefinite, the person is no longer subject to removal and everything shifts to the Criminal Code. That squeal point is not in Bill C-3.
To refer to a point Mr. Stewart raised, I would be content with a system where the standard of proof imposed on the government under the immigration law ratcheted up over time. If a person was in detention for say, five years, the onus on the government in terms of what they must show to justify this detention would increase markedly over time; an ``escalator'' in terms of the obligations on the government.
I have two other points.
Section 83 of IRPA relates to disclosure to the named person. At present, under IRPA, the judge is supposed to approve a sanitized version of the evidence against the named person for release to that individual. That situation has been true under the prior incarnation of IRPA and is true under Bill C-3. However, what the judge decides can go into that sanitized summary is dependent on the national security preoccupations; if the judge agrees that the information that would be released would be prejudicial to national security, it will not go into the summary.
That system is different than is available under the closest equivalent on the criminal side, which is the Canada Evidence Act. In that act is a balancing. The judge contemplates whether this information could be prejudicial to the national security against a countervailing fair trial interest and, in these circumstances. The judge can decide that the judge thinks the fair trial interest outweighs the prejudice to national security, and therefore, the judge orders release. That balancing is not available under the IRPA. That seems to be a missed opportunity in Bill C-3.
It is also inconsistent with what is happening in the United Kingdom. In October, the U.K. House of Lords concluded that, even with the presence of a special advocate, there are circumstances where a fair trial will demand more disclosure to an individual. Therefore, the trial judge retains discretion to demand fuller disclosure, and if the government balks at that disclosure, the case is tossed. That summarized rendition is what the House of Lords concluded in October.
My last point is in relation to subsection 85.4(2). The special advocates are concerned about this issue. You heard about the restrictions on the special advocates with regards to communications with the interested party once they have seen the secret information. However, there is even greater overbreadth in the language of the statute. The statute does not say the special advocate cannot communicate on the substance of the secret information. It says the special advocate cannot communicate on the proceedings.
According to the letter of the law, the special advocate cannot have communication on anything relating to the proceedings with anyone without permission of the judge. The special advocates are flummoxed by this language, wondering if that provision implies they cannot communicate with their paralegals when the information we ask them to collect is public. Special advocates will be looking to the Federal Court for guidance. If common sense prevails, the Federal Court will narrow the ambit of this language in its practice.
However, the current language is broad. Having spoken to the special advocates, they are concerned about the implications of this language on their ability to function.
The Chair: Thank you. Senators can ask questions of either speaker.
Senator Joyal: Senator Kinsella may go first.
Senator Kinsella: Thank you, senator. I will accept your kind offer only because I have the Speaker of the Parliament of Northern Ireland coming in at 2:30 p.m.
Professors, thank you for your presentations. I have three areas I want to probe. One is regarding comparative studies. In your research and readings, have you looked at other free and democratic societies, in the language in section 1 of the Charter, to see how they handle these issues? Have you come across other democratic societies where they have come up with legislation that is better than Bill C-3?
My second question flows from the first one, and Professor Forcese alluded to the issue when he drew reference to the European Convention on Human Rights as well as to our international obligations under refugee law. In terms of international standards of rights and freedoms — and the so-called balancing between freedoms on the one hand and security on the other hand — are we learning from the fundamental principles that underlie those international treaties?
For example, I draw your attention to article 4 of the U.N. International Covenant on Civil and Political Rights that Canada ratified many years ago. The covenant provides that, in times of national emergency, even when the life of the nation itself is threatened, certain rights are provided for by the covenant that are non-derogable. One is torture. That premise under-girds our international obligations. A lot of these obligations turn on this concept in section 1 of our Charter — limitations as provided for in free and democratic societies. Therefore, we must speak to and study all free and democratic societies so that we learn best practices from them.
Can you comment, please?
Mr. Forcese: The first element of the question is the comparative experience. Speaking specifically about special advocates, to the best of my knowledge, the countries that have developed a ``full bore'' special advocate model are Canada and the United Kingdom. New Zealand tried it but it was a disaster. The United States opens the door to a special advocate-like feature in their immigration law. However, to the best of my knowledge, the United States has never used the anti-terrorism provisions in their immigration law. They dealt with suspected terrorists under other provisions of their immigration law.
One is wary here but under the Guantanamo process, the military commission process, although it is not quite a special advocate model, they have rules on disclosure. However, the process is conducted in a military environment so the analogy is not a close one.
You asked whether anyone has done it better than us. The answer is no. When Lorne Waldman and I conducted research a year ago on comparative special advocate models in both New Zealand and the United Kingdom, the special advocates there said they hoped we would come up with a Cadillac version that will put pressure on their governments to improve the model they employ in New Zealand the United Kingdom.
The irony is that we did not come up with a Cadillac version. We did a cut-and-paste job of what they have had in the United Kingdom for some time. We have not done it any worse, but we certainly have not done it any better than the other jurisdictions I am familiar with.
More than that, we have moved away from the Security Intelligence Review Committee model, which Mr. Stewart noted. That model was a better approach in my view and, incidentally, was the inspiration for the United Kingdom model. The SIRC model was the inspiration for the United Kingdom; it was debased there and now it has come back to Canada in its debased form. This transatlantic cycle would be nice to break.
On article 4 on derogations under the international covenant, I think you are right. There are certain rights, torture being one, where there is no prospect of derogation as a matter of international law — nor should there be, it seems to me. I cannot imagine any circumstance where the fate of a nation rests on whether it can remove someone in an immigration proceeding to suffer torture overseas. I cannot imagine a circumstance where that would be necessary to save a nation. It seems to me there is room for absolutes in some areas and this is an appropriate one. I do not know if that addresses your questions in full.
Mr. Stewart: I agree with everything that Mr. Forcese said on that point. On your point about non-derogation, it is interesting that, as far as I know, no one has asserted that it is a time of national emergency. Obviously, terrorism is a terrible threat to people and states, but at least in Canada, it has not been asserted that it amounts to a national emergency. I think such an assertion would be implausible at the moment. Even if there was a possibility of derogation on the ground that there was a national emergency, I do not think we are facing one.
I thought you might want us to talk about section 1 of the Charter and the prospects for finding a limit on a right in the Charter. I want to say a couple of things about that section.
Charkaoui is really a section 7 case, I think. If I remember it correctly, the section 1 analysis is not detailed. I could be misremembering it, but I remember it as a section 7 case, where the court says that, given the importance of the interests that are at stake here — detention and possible deportation — the degree of procedural fairness required by section 7 is high, and this statute does not provide it.
There is no question the system of special advocates is better than what was there before, so we have something better. Will the court say this no longer violates section 7, or will they say it still violates section 7 but maybe we can uphold it under section 1?
I am not sure where the court will slot that in, but my sense is that whether it is done under section 7 or under section 1, the government would have a stronger case if the special advocate model was more robust; that is, if it was more like the SIRC model where there can be continuing communication between the named person and the special advocate. The government's ability to claim either that this is not a section 7 violation or, if it is, it could be upheld under section 1, will be enhanced. It would have been easier to defend the legislation in court if that provision had been put into Bill C-3.
Senator Kinsella: I have one supplementary question. In the world that we have been through post-9/11, and the world we experience even today, many would argue that the public does not sense the same level of threat today that was sensed immediately after 9/11. I come back to the question of theoretically, at least, the level of threat to the life of the nation.
Even when the threat is severe, there are limits to what right can be derogated from. However, if the threat is so distant, should the law reflect reality in that sense? Is the scheme we have here perhaps responding to a threat that is not the reality of our times?
Mr. Stewart: I am inclined to agree with that statement. The only reason I hesitate to agree completely brings me back to the secret evidence issue that I alluded to at the beginning. In these proceedings, as far as I can tell from reading the cases, the government repeatedly asserts they have a lot of information, it is compelling, but they cannot tell us what it is. Who knows? Maybe that is true. If it is true, maybe things are worse than we think. However, as a person who does not have access to that information, I am inclined to agree with you.
Senator Joyal: I will pick up on the saving clause of section 1 of the Charter. Professor Stewart, the Charkaoui decision dealt with that issue rather extensively, from paragraphs 66 to 84 of the decision. The court answered no when asked if the infringement of the immigration section dealing with security certificates was an infringement meeting a reasonable limit prescribed by law under section 1 of the Charter. The court said, ``It is unnecessary to answer this question.''
The court discussed and studied at length the implication of section 1 in relation to anti-terrorism. As I read the decision, they discussed two aspects of the unreasonable limit. For the first aspect, they asked if there were less intrusive alternatives. They did not put the question in absolute terms. They said, does an alternative system exist to the one contemplated in the first instance?
On the second aspect in their discussion of the act, they said that the IRPA scheme does not minimally impair the named person's rights. In other words, more or less, they applied the first of the three questions of the Oakes test, the study of the system in place.
Is the system meeting the objective? They said yes, its objective is national security, which is legitimate in a free and democratic society. Is the system in place in proportion to the objective sought? Is there an alternative that is less intrusive or less of a limit to the rights of the person?
The court spoke at length, in my opinion, as to the impact of section 1 of the Charter, in relation, as you quoted rightly, to section 4, the international covenant. There are limits that are not acceptable in any free and democratic society, and torture is one of those limits.
What prompted the further study of Bill C-3, professors, is that we were limited in our capacity to evaluate the impact of Bill C-3 because we were working with a time constraint. We had less than a couple of days, as you know. Instead of including a three-year review clause in the bill that would have postponed everything to three years down the road, this committee settled for a capacity from the government, of course, with the consent of the opposition, to review Bill C-3 in a more extensive manner and to come up with a recommendation by the end of this year. We thought that approach was more useful.
We still have the capacity to address the weaknesses of the special advocate system. Therefore, professors, I conclude the following from your presentations this afternoon. First, Professor Stewart, you concentrated your first set of remarks on the capacity of the special advocate to go beyond the information provided — that was the first element that I retained from your presentation — and then the capacity to give to the detainee access to elements of information that would be deemed sufficient for the person to prepare his or her defence, which, in your opinion, is better met in a SIRC model than in the special advocate model; the way that Bill C-3 has provided for now.
Do I interpret your position correctly?
Mr. Stewart: I will say one or two things; my colleague may have more to say. On your preliminary remark about the Charkaoui decision, you are right to remind me that there is discussion in section 1 of Charkaoui. I did not remember it that way because the Supreme Court has never upheld a section 7 violation under section 1. When I read the case, I probably switched off a bit when I arrived at the section 1 part. You are right that the court, in Charkaoui, wrestles with the same issue under section 1 that they will wrestle with again, under Bill C-3.
I am not sure whether they will deal with that issue as a section 7 or section 1 issue, but the substance of the issue will be the same: Does the special advocate system provide enough adversarial rights so that we can say the system is fair? I think it will be dealt with one way or another.
On the question of the special advocates, I think Professor Forcese knows a lot more about the SIRC process than I do, so I hope he will have something to say about this subject. My sense is that the SIRC process would do a much better job of enabling the person to respond to the allegations than the special advocate system does. As for going beyond the information provided, I am not sure which one is better. The special advocate system does not give much that way. There is no express ability to do that in the bill as it is enacted. The special advocate is to receive the same information that the judge receives, and so he or she is not automatically able to go beyond that information.
A section in the bill allows the special advocate to exercise other powers with the authorization of the judge. Section 85.2(c) of the new act enables the special advocate to exercise, with the judge's authorization, ``any other powers that are necessary to protect the interests of'' the person named in the certificate. I think that provision is broad enough to give this possibility of going beyond the information provided, but the judge must be persuaded that it is a suitable thing to do in the circumstances.
Senator Joyal: On that point, Professor Forcese, is it fair to contend that section 85.2(c) will allow the special advocate to call witnesses to seek answers from the detainee's counsel and to add to its capacity a legal team to provide a better capacity to mount a rebuttal? Do you understand my point? In other words, are we able to build a real system of defence with section 85.2(c)? The act does not spell out clearly all the elements needed to defend oneself or to test the information that is claimed to be a national security concern, confidential or out of reach for the detainee. However, with that section, can we put into place both the capacity to rebut the confidentiality of that information or the truthfulness of that information? Second, is it possible under that section to obtain from the defence lawyer, or the detainee's lawyer, a capacity to involve the detainee under this provision of the judge so that the detainee is able to mount a real defence?
Mr. Forcese: The answer is possibly. The way that officials in the Department of Justice have described Bill C-3 to me is a template. It is a template; the details are to be filled in by the Federal Court. The issue of continued access, for example, between special advocate and interested person and their counsel is subject to the order of the judge. The Federal Court judges have a lot of discretion now to develop a system. I will come back to this issue of disclosure to the special advocate in a second, but there is also discretion on the part the Federal Court judges, perhaps by employing section 85.2(c), to concoct a system that enhances the adversarial capacity of either special advocate or the interested party and their counsel to mount an adequate defence. It is in the hands of the Federal Court.
I agree with Professor Stewart that what the Federal Court does with this provision ultimately will determine the success of these constitutional challenges, which are inevitable. If the Federal Court is too restrictive, then it will be awkward for the government to defend Bill C-3. If it is too expansive, then we could end up with the Cadillac system to which I referred earlier.
There are limits to what they can do with section 85.2(c) in terms of enhancing the capacity of the special advocate. The Federal Court judge, like everyone else, will be preoccupied with not spilling the beans on the government's secret information. Whatever powers or authorization the special advocate claims and receives from the judge under section 85.2(c) will be hedged closely by an obligation not to disclose secret information. Presumably, that obligation would involve disclosure of secret information to a paralegal, associates and partners in their law firm. I do not think we will get away from the prospect of special advocates as lonely barristers in silos fighting the entire government apparatus. The only way we address that prospect is if we have a standing office of special advocate support like they do in the United Kingdom, where they have security-cleared paralegals, associates and solicitors assisting the special advocate.
I mentioned before the overbreadth on the language about communication and that once the special advocate has seen the secret information, the special advocate cannot talk about the proceeding. Special advocates are saying, ``Can we not communicate with one another? We are all security cleared. Why can we not share institutional knowledge?''
The concern is that communication is precluded by the act. That concern perhaps can be cured by a sufficiently nuanced Federal Court judge, but right now the act, as read, suggests that special advocates cannot communicate between themselves. That is a real concern for special advocates, because in the United Kingdom, one thing that makes them more effective is sharing institutional knowledge. The government may claim something in this case that may be directly opposed to what they claimed in that case. That kind of swapping of information enhances their capacity. The secrecy issue limits the system that might be cobbled together.
I want to make a point about the Security Intelligence Review Committee model. The SIRC model is better on two grounds. Continued access has never been an issue for SIRC. They see the secret information, they take questions and they have meetings with the interested party and their counsel. I think you will hear from counsel for SIRC at some point. She can describe that process in detail. They meet and it has never been an issue.
On full disclosure, the issue of what is disclosed to SIRC, SIRC is supposed to see everything except cabinet confidences from the Canadian Security Intelligence Service, CSIS. In practice, that does not mean they go to CSIS headquarters and rifle through the files. There is a filter. CSIS gives them the information and they sit in what is called the bunker in the CSIS headquarters and they look at that information. If there is something in that information, such as a memo referring to another memo that seems material but is not in the package they have been given, they can ask for the other memo and CSIS must deliver. Counsel and the interested party have that power statutorily. They also have a substantial amount of experience reading CSIS material. They have an institutional knowledge that may not be shared by all special advocates.
In the special advocate model under Bill C-3, the language of the statute says the special advocate is supposed to receive everything the judge sees. There is also Federal Court jurisprudence that the government has an obligation of utmost good faith; the government must give them everything the government has that is material and relevant. They cannot put only their best foot forward. At least, that is the way Federal Court jurisprudence has developed. What concerns me is that the government delivers this material and the special advocate, in that lonely silo, leafs through these piles of boxes. How able are the special advocates to press the issue of disclosure by going back to the judge to say, I do not think we have seen everything?
They will be underequipped relative to SIRC. That situation is a problem.
Senator Joyal: On the same grounds, can a special advocate trying to convince the Federal Court judge argue that if the special advocate relies on receiving authorization on the basis of the means developed in the U.K. to convince the judge, that it is possible to maintain the parameters of security but improve the system so that the special advocate is in a better position to represent the interests of the reliability of proof that is in front of the judge, and of course the rights of the detainee for a better defence?
Mr. Forcese: They can try, but that issue is a resourcing one. Language in Bill C-3, as you know, suggests that the government is supposed to resource the special advocate system adequately. There is no further definition of that resourcing. It would be hard to pre-define resourcing in a statute.
The special advocates are acutely concerned about this situation. I am told they will work in teams of two, so there will be two on each case. The first place they may go is to the court and say: we have problems; we are two lonely barristers against the entire government apparatus; the government does not have constraints on how they can share information amongst the persons working on this case, and we do; we want you to cure this problem.
The court probably will balk at obliging the spending of money because it will not see that as the purview of the court. Whether special advocates are adequately resourced seems to be a battle they will fight with the executive branch, the Department of Justice, and whether there should be something like the Special Advocates Support Office that exists in the United Kingdom.
The United Kingdom came to the Special Advocates Support Office after several years of intense controversy over the lack of resourcing.
Senator Joyal: Yes, it was mentioned in the Charkaoui decision at paragraph 83. It refers to a 2005 report of the House of Commons committee, where the committee, in reviewing the operation, concluded that they were not gifted enough in terms of resources to meet their objective.
You say we should try to have a Cadillac but I think the objective should be to have a Bentley. Why not improve the system so that we devise it, as close as possible, to the SIRC model so that we achieve the same objective of maintaining security and protecting the rights of the detainee?
Mr. Forcese: You will have no argument from me.
Senator Joyal: In that context, which aspect of the bill would you improve to ensure that the SIRC model is parallel to the one that the special advocates contemplate?
Mr. Forcese: The quickest way to fix the problem is to take the language that denies the special advocate continued contact without permission of the judge and turn it on its head; in other words, continue contact subject to such restrictions as are reasonable to preserve national security. There is a presumption in favour of continued contact. In terms of the full disclosure issue, include a provision in the bill that one of the powers of the special advocate is to ask SIRC to certify to the special advocate and the judge that there has been full disclosure so that we have an independent third party other than the Government of Canada, which is prosecuting the case, that affirms whether there has been full disclosure.
Senator Joyal: That would be a preliminary confirmation that the ``allegation'' that the materials contain has been already proved?
Mr. Forcese: It will not be a perfect system in that we are dependent on how well SIRC will work in terms of probing whether there has been full disclosure. SIRC has had its own problems with CSIS information. There are instances where SIRC has not been provided with all the information and discovered that only late in the day. At the least, we need an experienced body and SIRC is that; it has experience reviewing CSIS and a relationship with CSIS that is independent of the government bringing the case, who is able to certify full disclosure. Disclosure ultimately will turn on relevancy. If the government lawyers are framing the case, their view of relevancy will be different from that of the special advocate who is trying to defend the case. That has been true in the United Kingdom. To have someone other than the government that is involved in the assessment of relevancy is important. SIRC seems to be the logical place because of its experience in reviewing this sort of information.
Mr. Stewart: To add to that briefly, I thought your question had an element of the following: Can we have something close to the SIRC model given the legislative language as it stands? I think we probably can, depending on how it is interpreted by the judges of the Federal Court, and how vigorously they are able to use some of these provisions in the bill. I think it is preferable to spell all this out and not to require the special advocates to expend their resources arguing those points. It would be better to put them in so special advocates do not need to battle for them, possibly in each case before different judges until the court develops a collective sense of how these things will work.
Senator Andreychuk: You do not propose that the SIRC concept be taken on by the existing SIRC; you say to use the model we have, improving it towards a SIRC model? Do I understand both witnesses to say that?
Mr. Forcese: Yes.
Senator Andreychuk: One difficulty is the term, ``full disclosure.'' It is one that plagues prosecutors even in the criminal law. What do they disclose? What do they think is relevant and what do I think is relevant? We have yet to finish there in criminal law. We continue to evolve and to change with technology, because of full disclosure. How much better we would be with that example where we would reverse the question put to the judge and that we would deem full disclosure unless otherwise necessary for security. Full disclosure would only take us into another quagmire. That is my short question.
Mr. Stewart: It is true that there are problems with disclosure in criminal proceedings also. Given that criminal law is my particular area of interest, I would be delighted if I could have come to you with a solution to the problem of disclosure in criminal proceedings and have been able to say that we can apply that solution here as well. Unfortunately, I do not have that solution.
The standard for disclosure in criminal proceeding is stringent. The standard that the Supreme Court set in Stinchcombe is that everything must be disclosed unless it is clearly irrelevant or privileged.
From reading a lot of cases about non-disclosure, as I did at one time, one is left with the impression that it is rare for the Crown to be seriously in breach of this obligation nowadays. There are many cases in which the Crown has failed to disclose something that should have been disclosed under the Stinchcombe model, but there are not many cases in which, at the end, the court concludes that the non-disclosure mattered. There are problems with disclosure in criminal proceedings, but it seems to me that it is working reasonably well in terms of protecting the right to fair trial of the accused.
It would be desirable to have a statutory or regulatory structure in place for disclosure so that there would be clearer timelines for both Crown and defence counsel to do what they are supposed to do at various stages of the proceeding, so that these disclosure battles do not go on indefinitely. However, that is another topic.
In the context of security certificate proceedings, it is difficult, because any disclosure standard must take into account the national security interests of the government. There is no question about that.
I am still of the view that the special advocate should be entitled to disclosure on the criminal law model. Of course, that information will not all go to the named person, or to the public, or to the detained person's counsel, but I am of the view that if the special advocate is to do the job of representing the person's interests properly, the special advocate should have disclosure on the criminal model.
I say that in part because of what still seems to me to be the quasi-criminal nature of these proceedings. I know that the Minister of Public Safety appeared before you in February and said that this issue is an immigration matter and not a criminal law matter. It is true that the provision is part of the Immigration Act, so, in that sense, it is an immigration matter. However, given the importance of the individual interests at stakes, including the lengthy periods of detention involved, procedural protections must be high, and disclosure is one of those protections. For that reason, I believe that the procedural rights of the person in this situation should be as close as possible to what they would be in criminal proceedings, taking into account the national security context.
Mr. Forcese: The question is a difficult one. Part of it will be answered by the second Charkaoui case, which was argued in front of the Supreme Court in December, so we can expect a decision at any time.
At issue in that case, in part, is the nature of the disclosure obligation on the government to Mr. Charkaoui himself, the named party. The distinction between Stinchcombe and non-Stinchcombe is probably in play, although we do not know what the Supreme Court will do with it.
I am of the view, like Professor Stewart, that at least in relation to the special advocate, the current jurisprudence of the Federal Court, that is, utmost good faith, obligation to disclose everything that is relevant, comes close enough to Stinchcombe that what they disclose to the court is probably no different in law from what should be disclosed in a criminal proceeding.
The reason I am a proponent of a different institutional framework for certifying that disclosure is the nature of the proceeding and the information in question. In terms of the nature of the evidence, in a criminal proceeding, it is generally a discrete core of evidence, that is, things such as notes contemporaneously taken by the police officer and forensic evidence. It is not ``connect the dots,'' but it is a much more discrete package of information than would be the case when dealing with security intelligence where information is provided by the Syrian intelligence agency or something coming out of Bagram Air Base from a U.S. army interrogation. A discrete, amorphous body of information is feeding into the security certificate process, which does not walk, talk and look like evidence in a criminal context. In that circumstance, it seems to me that the prospect of something relevant going missing is much higher than it would be in a criminal proceeding.
The second reason there needs to be more of an institutional check and balance, that is, asking SIRC to be involved in the certification of full disclosure, is the nature of the proceeding; it is secret. In a criminal proceeding, the Crown presents evidence in the presence of the accused, who can advise their counsel if they believe the evidence presented is incorrect.
In the security certificate context, the special advocate will not necessarily be fully apprised of everything the interested party would know, so special advocates are not as equipped to identify a problem in the evidence produced by the government.
In those circumstances, we must also increase the check and balance on the government to ensure full disclosure. There is no perfect way of implementing this check, but having a third party review the government's files and disclosure seems the closest to a compromise position.
Senator Andreychuk: The issue comes down to disclosure and evidence. In criminal law, thousands of cases over many years set precedent. In modern days, security has been a secret and covert activity. Jim Judd, Director of CSIS, recently said that the closer we come to an open criminal model and prosecution in Canada, the less likely it will be that CSIS and the police will be able to continue a covert model of collecting evidence.
I had not thought of it that way. We always talk about balancing national security and the rights of the individual, about how an accused receives a fair hearing while we protect the public. In criminal law, those balances have been worked out, but if we continue with our current models and continue to look at balancing, inevitably we will not be able to use the kind of evidence that security services have collected, which is considered to be in our national security interest. We will be less capable of preventing imminent threats and we will be able to prosecute the guilty only if we catch them with the goods. This scenario is particularly exacerbated by the immigration situation.
Mr. Forcese: This area is a difficult one, and one that all western democracies that I follow are confronting with varying degrees of success.
First, it becomes judicialized only in circumstances where the government tries to impose some sort of penalty; that is, a criminal proceeding or an immigration proceeding. Nothing precludes CSIS from conducting sustained surveillance or collecting information in some other manner. That situation only becomes relevant if the government goes a further step and brings a prosecution or an immigration removal process.
The idea that covert information-collecting is somehow abased because we have these proceedings over here, is only a problem if we have more of those proceedings; in other words, if we decide to have more security certificate cases and to bring more criminal prosecutions.
Once that decision is made, I agree with what Jim Judd said. I am not persuaded that where CSIS used to conduct covert surveillance, they are now more inclined to bring more prosecutions or more immigration proceedings.
I do not know that for a fact. There have not been any more security certificate cases for the last couple of years. We are not seeing an acceleration of this process.
Senator Andreychuk: Is that why we are not seeing the security? The security intelligence system says we have this kind of evidence, we are worried, but if we go the next step we will disclose all our sources and we will go through a judicial scrutiny. They are leaning the other way, which may not be in our national security interest. I am only carrying your argument the other way.
Mr. Forcese: The situation is the chicken-and-egg one. The security certificate cases are enormously expensive for the government and consume an enormous amount of resources, both in terms of preparation of the case and then the protracted litigation. I understand the system of disincentives that now exists for bringing these cases.
On the other hand, since the inception of CSIS we have had a SIRC model where complainants have always been entitled to bring complaints concerning CSIS, and until 2002, that entitlement included security certificate cases. We would have full disclosure per the SIRC rules under the CSIS Act, and we would have continued access by not only the counsel inside SIRC, but occasionally their outside counsel was brought in, in some cases, as a private practitioner. Some of those counsel are now special advocates.
We have had this model for 25 years in which some of this information collected by CSIS will be tested, albeit in camera, ex parte, but still tested in a manner that is not much different from what we are talking about in the security certificate context except it happens to be in front of a designated Federal Court judge.
It is hard for me to comment as an external observer about what motivates and drives CSIS. Some things do not line up in terms of greater reluctance because suddenly we have this highly intrusive system that we never had before. It is not true, at least in the immigration context.
Mr. Stewart: A lot of the problems we are wrestling with arise because the government wants to do two things that are in tension with each other: They want to gather information and keep it secret; they also want to use it against someone in a proceeding. That tension is where the problems come from.
If the government is truly concerned about maintaining the secrecy of some of this information, the government may need to forego the advantages of using it in certain kinds of proceedings because of the need to make those proceedings fair.
Senator Andreychuk: Then there would be a resource difficulty to continue to track these people without taking the next step of putting them under the obligation of a security certificate, per se.
Mr. Stewart: That may be.
Senator Andreychuk: Security certificates were things that academics, lawyers and others discussed but it was not in the public domain until we reached the point of returning people where they might be tortured. That point seemed to grab a lot of people who said that it is not the Canadian way of doing things.
It is not that they have questioned so much whether these people were a security threat. It was more that, if they are, and we return them, we then come to this other competing problem of returning them to torture, and that is not a standard Canada wants to set.
In all the years we have studied this subject, it always comes back to the fact that Canada cannot solve this problem alone; returning to torture. Somehow, all countries are struggling with that problem and it demands — as many people say — an international answer on the question of torture, and we will not solve it by legislation in Canada alone.
Mr. Forcese: The problem is that there are countries that torture, and we cannot solve that practice in Canada. We have gone backwards, it seems to me, since 9/11 in terms of the firmness with which western democracies have opposed torture. The problem of states that torture will not be solved any time soon, and it will not be solved unilaterally by Canada.
In those circumstances, our only alternative is to honour our values and our international legal and Charter obligations, and not return people to circumstances where there are reasonable grounds to believe they will be tortured. For me, it is an absolute.
Senator Andreychuk: The U.K. was receiving undertakings by those countries that they could monitor, et cetera. That was one answer; to engage those countries and not give up on them as torturers, and to insist that if they want to be part of the international community, they must adhere to international standards. In other words, continue to plug away — it is difficult — at getting others to adhere to international standards.
Mr. Forcese: The issue of diplomatic assurances has been controversial in the U.K. and has received sustained negative commentary in Canada, including by our Supreme Court in Suresh.
We accept assurances in death-penalty cases. In circumstances where someone will be extradited or removed from Canada to serve trial in United States where they might be subject to capital punishment, we will seek assurances that capital punishment will not be sought or inflicted.
The Supreme Court observed the difference between capital punishment and torture in Suresh. For capital punishment — at least in places like the United States — we are not talking about extrajudicial execution; we are talking about a formal judicial process with checks and balances and controls.
There is no country in the world that I am aware of that, on its law books, says torture is permissible. Yet a substantial portion of countries in the world practice torture. It is a surreptitious practice behind closed doors. It seems to me that if we are trying to regulate a surreptitious, illegal practice under the law of the country in question through an additional promise that the country's state department or foreign affairs office offers and says we know it is already illegal, but here is the supplemental promise that we will not do what is already acknowledged as illegal, there is not much value added in that assurance. Moreover, because it is practiced in secret, it is difficult to police.
Witness the difficulty we had in guaranteeing the treatment of Maher Arar in circumstances where he was a Canadian citizen. Imagine the leverage we would have over a foreign government in circumstances where that person has no citizenship tie to Canada. We would have none.
It seems that assurances are largely unworkable in most instances. Of course, I would not want to test that hypothesis on the back of one of my clients. We only find out it is unworkable, if we do at all, when the person suffers the wrong that we are trying to prevent.
Senator Andreychuk: Were security certificates looked at as long-term issues? In reading what Britain is doing, they eep saying it is justifiable and acceptable to hold someone in the investigative point, certainly under security certificate provisions, providing they bring them to court often and have the review, review, review. They do not seem to talk about when does the holding end.
Professor Stewart, I think you mentioned that security certificates were not intended to be a long-term issue.
Mr. Stewart: No, the Supreme Court said something similar in Charkaoui when they said they were faced with some aspects of this possibility of lengthy detention in Charkaoui. The court essentially said they would not say it is unconstitutional but there must be a meaningful process of ongoing review — or words to that effect — to describe what must be done to ensure these provisions were constitutional.
I agree with that. Given the small number of people subject to this extensive, ongoing detention, it is difficult to know whether they are receiving that review. Even those released have been released on extremely stringent conditions, which must be close to imprisonment in certain respects.
What I suggested in my initial remarks was that I think it would have been possible to put something in the immigration act that would recognize that the longer the detention is, the less likely the person is to be a threat still.
This situation has been recognized on a case-by-case basis by some of the judges who have dealt with these detainees after they have been in jail for a long time. The judge has said this person's contacts have been completely disrupted. It seems unlikely the person will be a threat. That situation has weighed in favour of releasing the detainee.
It would have been preferable from the point of view of individual liberty if some kind of statutory presumption to that effect had been inserted in the bill.
If someone had never heard about any of these cases and they read the statute, they would think that this detention is only brief while the court sorts out whether this person is a threat. However, it has not worked out that way.
Senator Day: I want to go through how this process will unfold. Then I have a couple of questions.
Do you have the specific clauses of Bill C-3 with you? The first step is for a certificate to issue, with two ministers having signed it. Sometime down the line, there must be a determination of reasonableness. Is that reasonableness test the same test as reasonable grounds, the level of information one would expect of a peace officer?
Mr. Stewart: I think it is a bit higher. In Charkaoui, the Supreme Court of Canada provided gloss on that reasonableness language. If you give me a minute, I will find it in the judgment.
One concern expressed about this statute is that reasonable grounds is such a low standard as compared with that of proof beyond a reasonable doubt or even proof on a balance of probabilities. I do not know if I will be able to find it quickly, but the Supreme Court spoke in Charkaoui of the certificate being reasonable if there were credible and reliable reasons to think the minister's allegations were true or something along those lines. I am sorry I cannot remember it more precisely.
Senator Day: Is this standard a new one that we have not seen in any other legislation?
Mr. Forcese: I do not know the provenance in terms of the history here and when it first appeared, but reasonableness probably harkens to administrative law principles where, in administrative law, review in court does not necessarily assess whether the government was correct per se. It accords a varying degree of deference. One of the indicators of deference is a standard of reasonableness. They can be a little off the mark, but not so far off that it is unreasonable.
That is the way I have always understood the language of reasonableness here. It instructs the court that they are supposed to review, but on a modestly deferential standard analogous to the standards applied to administrative law.
Senator Day: Once that test has been applied by a judge and the judge finds there was reasonableness, as I understand section 79, there is an appeal of the Federal Court only if the judge certifies that a serious question exists for appeal. There is not an automatic right of appeal in that regard.
Mr. Forcese: That is true of several provisions in immigration law, such as with a regular refugee determination, for example. Most of what happens under IRPA, if not everything, is with leave. That is true of a judicial review of a refugee determination that goes to Federal Court, and then at the Federal Court of Appeal, it is with leave and the certification of a serious question.
Senator Day: Following on with the process —
Mr. Stewart: I am sorry to interrupt. Can I say a couple of things about that point?
Senator Day: Yes.
Mr. Stewart: For information, the part of Charkaoui I was thinking of appears in paragraph 39. The court said, ``The `reasonable grounds to believe' standard requires the judge to consider whether `there is an objective basis . . . which is based on compelling and credible information.''' That is how they interpreted reasonableness in this particular context. It is for detention.
However, earlier in the paragraph, they talk about the reasonableness of the certificate as well, which suggests to me these things are all of a similar nature.
Senator Day: It is interesting you conclude that. That was my next question. I wanted to ask about this question of detention, continued detention and that review. Is that the same standard? In Charkaoui, is the judge saying it is the same standard of reasonableness for the certificate and for continued detention?
Mr. Stewart: That is my understanding. On the question of appeal, under the former scheme, there was no right of appeal at all from the determination of reasonableness, which I thought was problematic. I was glad to see some possibility of appeal in the new legislation. As Mr. Forcese said, this right is parallel to other rights of appeal in immigration matters under this statute.
If we think of this as a quasi criminal type of situation, it looks like a fairly weak right of appeal compared to what we see in criminal law, where the convicted person has a broad right of appeal on questions of law and fact, generally speaking.
I would have been happier if the right of appeal had been broader than as stated in section 79.
Senator Day: The certificate process and the reasonableness is one thing. Then we also find in section 80 that if the certificate is found reasonable, there can then be deportation.
However, in the meantime, in section 81, if the minister determines to arrest this person and the person should be incarcerated, they can incarcerate that person under section 81. We still may be at a stage, and we probably are, where the reasonableness test has not been applied.
In section 82, ``A judge shall commence a review of the reasons for the person's continued detention within 48 hours after the detention begins.'' This review is a different one. It does not say what standard is there, but the review is different than the review as to reasonableness of the certificate, as I understand it. Is that correct?
Mr. Forcese: Yes: Typically, as I understand it, the certificate is issued and along with the certificate comes the warrant for detention.
Senator Day: Do they typically do those at the same time? However, they do not need to be done necessarily at the same time. There are two different procedures here.
Mr. Forcese: No, with respect to the 48 hours and every six months, the review standard as to whether detention should persist is on the ``reasonable grounds to believe'' standard. The assessment is whether one should be able to detain this person on ``reasonable grounds to believe,'' and then the court reassesses the continued detention on that basis. At least, that is what has happened under the prior jurisprudence.
Senator Day: Those words do not appear there.
Mr. Forcese: No, but in practice, that is what has happened in the prior incarnation of IRPA. ``Reasonable grounds to believe'' — and Mr. Stewart read that language aloud — is an extremely low standard. It is not the lowest standard we know in Canadian law, but it is close.
The concern I indicated earlier was that one could be detained potentially indefinitely. Remember, there is no formal link between removal and detention, as you have pointed out. Therefore, if a person can no longer be removed to torture, that person can still be detained potentially indefinitely on a ``reasonable grounds to believe'' standard, which is basically a suspicion. That situation is enormously concerning.
In my view — and I think Mr. Stewart echoed this view — we should have a ratcheting up over time so that for the first six months a person may be detained on reasonable grounds to believe, but in that interim the government has had time to develop its case so that going back for that first review should be a more demanding standard of proof.
Senator Day: In practice, would each review have a different judge?
Mr. Forcese: In practice, it tends to be the same designated judge who deals with individual cases.
Senator Day: Therefore, if the judge had reasonable grounds to believe six months ago, the judge is most likely to continue that belief. Is that correct?
Mr. Forcese: Except that we have seen the practice, as Mr. Stewart has indicated, where judges have said that essentially this individual has been subject to the certificate process. They have been taken out of circulation. The notoriety of these cases means they are no longer effective as a potential terrorist asset, so under those circumstances, whatever threat they might have posed six months ago has abated. That is how we have these conditional release orders.
Senator Day: I would be interested to hear your opinion on a couple of other subsections.
With respect to paragraph 83(1)(h), we were told by a number of witnesses that they felt that paragraph was too loose. The paragraph reads:
the judge may receive into evidence anything that, in the judge's opinion, is reliable and appropriate, even if it is inadmissible in a court of law. . . .
There is the new restriction with respect to evidence obtained by torture. Do you have any comment with respect to that subsection?
Mr. Stewart: Briefly, I think proceeding on this type of information is consistent with seeing this as an immigration type of proceeding. I am not an immigration lawyer, but if you look at the provisions of the act that govern how refugee determinations are made and other types of proceedings under the Immigration and Refugee Protection Act, they contain maybe not the identical language but similar language to the effect that the tribunal is not bound by the rules of evidence, or that the tribunal may receive anything it deems reliable and appropriate. Language like that will be seen in other parts of the Immigration and Refugee Protection Act.
If we see this as an immigration proceeding, it makes perfect sense to have this language here. However, if we see it as a quasi-criminal proceeding, which is how I tend to see it, it sets off alarm bells.
At the same time, if the government makes its case through this information summary from secure sources, it is inevitable that we will need something like this. Otherwise, it would not be receivable as evidence according to our normal rules of evidence.
I wrote a paper on aspects of this issue some time ago. A friend of mine who has represented detained individuals read a draft and said, ``You keep talking about evidence in your paper. It is not evidence I received in this summary; it is a bunch of stuff from CSIS.''
I think that situation inevitably will be the case if this is seen as an immigration proceeding or one where information truly must be kept secure. Therefore, yes, it troubles me but I can see how it fits into the scheme.
Mr. Forcese: As Professor Stewart has indicated, the reason for this provision is that the conventional rules of evidence would mean that little of what the government relies upon in these cases would be available to the court, not least the hearsay rule. I have been told by people in the United Kingdom and in Canada that the information used against the individual tends to be hearsay piled upon hearsay.
It may originate with the Syrian security service. It is then shared with MI5 in the United Kingdom. The analyst at MI5 prepares a memorandum that is shared with another allied intelligence service. Ultimately, the information is handed over to CSIS.
A Syrian report is handed to the United Kingdom; analysts' reports are piled on analysts' reports before it arrives at CSIS. A chain of information has bounced around the world, none of which would be admissible under our conventional rules of evidence.
Section 83(1.1) is important, which is the bar on using evidence obtained under torture or cruel, inhuman and degrading treatment. The language about torture is already covered in the Criminal Code. However, the language about cruel, inhuman and degrading treatment is not. We no longer need a debate in Canada about whether water boarding is torture, which is the ongoing debate in the United States. I think it is torture, but it is irrelevant for the purposes of this provision. If it is not torture, it is certainly cruel, inhuman and degrading treatment. Therefore, it cannot come into these proceedings. We vitiate the need to have this protracted debate about what is torture and what is not.
Senator Day: That amendment was a good one.
The next question is with respect to section 83(1.2)(c) on page 8 of Bill C-3. This provision suggests that the special advocate is not able to differentiate between information in the special advocate's mind from a previous case and, therefore, should not be able to proceed in this new case. Previous witnesses have said that lawyers do this all the time. They are able to differentiate and maintain information they have in their head from one case to another.
Do you have any comment with respect to that subsection?
Mr. Forcese: It remains to be seen how this provision will work out. As you probably know, the first debate on special advocates that has arrived in federal court has now been resolved. It was about whether two individuals who were counsel for four of the parties subject to a security certificate could stop being counsel and start being special advocates. They have been security cleared and appointed to special advocates.
The government complained that to have these individuals moved from a role as counsel to special advocate would raise conflicts of interest.
Senator Day: That is subsection 83(1.2)(b).
Mr. Forcese: It would raise conflicts of interest, but also it would raise subsection (c) in the sense some of these individuals were also representing the persons participating in the Iacobucci internal inquiry. At the end of the day, the issue was resolved and these individuals are now serving as special advocates. However, this was a fraught debate.
The reason that subsection (c) gives me concern is that in the United Kingdom there has been what is known as tainting. A special advocate works on case A. The special advocate sees the secret information on case A. Case B comes along and may involve the same country with some of the same information potentially. That special advocate is precluded from having any contact with the interested party in case B, even prior to seeing the secret evidence in case B because that person has worked on case A. That special advocate has been tainted because of prior contact with the secret evidence in case A.
It seems to me that subsection 83(1.2)(c) opens the door to a Canadian concept of tainting. In other words, someone is tainted because of their prior involvement in some other parallel case and, therefore, it is not appropriate for them to be the special advocate in this subsequent case.
This is a problem for a couple of reasons. It is a problem because part of the reason someone becomes a good special advocate is that they work on the same cases over and over again and they become better. It is also a problem in that there is a finite list of special advocates. If they all become tainted over time, we will have a circumstance where there is no contact as a special advocate with the interested person because of this tainting concept.
It remains to be seen how this situation will work out in Canada. It has been an issue in the United Kingdom.
Senator Day: Why has this tainting principle developed? Is it because the special advocate would have a wealth of knowledge and therefore would be able to ask questions that may get to the real root of what is happening?
Mr. Forcese: I will not go that far.
The special advocates I have spoken to in the United Kingdom have told me, in essence, that the government does not trust them. The government is wary of the constraints on information sharing. That is why the United Kingdom has a strict regime of non-communication with the interested party once the special advocate has seen the secret information. The special advocate can have continued communication only in writing, and the questions posed to the interested party must be vetted by the government side. Special advocates do not avail themselves of this communication because they feel that the fact the government vets the question is prejudicial to the interested person.
The United Kingdom has been wary about the continued contact issue, and tainting is a manifestation of that issue. In essence, the special advocates say the government does not trust the outside barristers. I think we will see the same phenomenon in Canada.
Senator Day: That is interesting. We may follow up on that issue.
My final question is with respect to section 85.4(2), which deals with the situation after the evidence is received. The special advocate, in effect, may not have any discussion with their client without the judge's permission.
That provision was discussed earlier. Professor Forcese, did you say that there may be two special advocates and will they be able to talk to one another?
Mr. Forcese: Presumptively, only with a court order: special advocates are concerned about the language of the section. They do not know what it means. They all assume that common sense will prevail, but how far will common sense prevail?
Will the special advocate be able to talk to their paralegals about the proceeding? They cannot talk to their paralegals about the secret information, but what if there is some other issue that is purely a matter of public information?
I may want to know about cruel, inhuman and degrading treatment and how it is defined in international law, but I cannot talk to my associate or paralegal because that matter concerns the proceeding where I am special advocate. A literal interpretation of this provision would mean we are in trouble. Common sense suggests that the special advocate would be able to do so, but we will have to wait and see.
Mr. Stewart: I agree with that concern. Common sense probably will prevail, but it may have been better to draft the bill in such a way that the special advocates did not need to fight these battles from the outset. I am confident they will fight them successfully. However, this concern is all a distraction from their real task. It would have been nice if it were clearer from the beginning that this type of common sense communication was not precluded by the statute.
Senator Day: Would it be helpful to amend section 85.4(2) of Bill C-3? The introductory words are:
After that information or other evidence is received by the special advocate, the special advocate may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge's authorization. . . .
It could be amended to say that they:
. . .cannot, without a judge's authorization, communicate that information and other evidence or any portion of it. . . .
That wording would be instead of the wording that they cannot talk about the proceeding in general.
Mr. Forcese: That would cure the overreaching issue of breadth, which is information concerning the proceeding. As well, we need an additional subsection that says, ``for greater certainty, you can have continued communication with the interested party and their counsel subject to reasonable restrictions such that you do not disclose the secret information.'' We carve off communications with the counsel and the interested party and put it in a different camp altogether and create a presumption in favour of continued contact, subject to reasonable limitations.
Senator Day: Would prior approval by a judge be required?
Mr. Forcese: Maybe not on a case-by-case basis but there must be an opportunity for the government to make submissions on precisely the kind of constraints that should be placed on the special advocate. I would not oppose that. If we create a presumption of favour of continued access, then we must be wary of not posing so many restrictions that we close off that continued access. Currently, they have to fight for any access.
Mr. Stewart: The way in which you quickly posed the possible amendment might go too far the other way, a view that might surprise you after my comments this afternoon. The concern driving this section is not only about communication of the information, which is clearly not to be communicated to the person named because that is the whole point of the system, but also the inadvertent disclosure of things that might alert the named person to something that the government thinks that person should not know. The way in which you posed the wording of a possible amendment might not protect the government's interests sufficiently, which we must recognize.
Mr. Forcese: The way to deal with that issue is to say they ``cannot disclose consciously or inadvertently.'' In that way, we cover off the prospect of inadvertent disclosure and put the focus on the information, not on the information as a whole.
These special advocates are highly cognizant of their obligations as barristers, obviously, and their obligations under other rules of professional conduct. However, they are subject to prosecution and incarceration for 14 years under the Security of Information Act if they disclose any of this information. They are bound permanently by secrecy. The hammer that can come down on them if they disclose will be extremely heavy. Therefore, they will not rush to disclose information consciously or inadvertently, and will be cautious.
If the government is concerned about what is said in that room between the named person and counsel, why not have some provision in the act that if the government insists, legal counsel from SIRC can be present. In that way, a third party would be present to advise the special advocate if they go into dangerous territory. Then, the provision would need to subject that counsel from SIRC to some non-disclosure obligation as well so they do not run back to the government with what was said. It is all possible and can be done through careful crafting of the bill.
Senator Joyal: I am tempted to go beyond the strict study of sections of this bill and put the bill into more of a systemic context. Professor Kent Roach, who we heard last week, mentioned that there is a natural tendency by security service to claim that everything is secret. By corollary, they will fight any initiative that tends to vet that statement or the context in which they work to maintain security. I can understand that position. It is more or less the law of nature.
In an article published in The Hill Times on Monday, April 28, 2008, Mr. Forcese, you looked into the U.K. and Australian model and how they monitor security anti-terrorist legislation and the value of an independent watchdog. In Britain, the independent examiner is Lord Carlile of Berriew. According to your article, he has the status of an officer of Parliament and can exercise the monitoring continuity of the anti-terrorist legislation.
When we hear your comprehensive responses to our questions on Bill C-3, we cannot help but conclude that there are still many grey zones in respect to how the special advocate system will operate. As both of you have said repeatedly, it will depend upon whether a federal court judge wants to give this and that, and how. There is a great deal of uncertainty as to how the system will operate eventually in the context of the parameters of the Supreme Court decisions in Charkaoui.
How should we ensure that we have the capacity to continue to monitor the two exceptional provisions of our law such that we maintain security and the rule of law in Canada?
Mr. Forcese: That question is an important one. First, much is left to be resolved under Bill C-3. We are not sure how it will work, if at all. My first piece of advice to this committee would be to keep a watching brief. Do not rush to put out a report by the end of this year. If matters are left to resolve or if you must put out a report, make it an interim report and continue your observations as these issues are ironed out in federal court. Frankly, it may well be that in January after your report is out, something happens at federal court that causes the whole system to collapse, at which point we need careful legislative scrutiny.
Second, you mentioned the article I wrote that looked at the independent examiner function in the United Kingdom and, to a lesser extent, in Australia. It is analogous to an officer of Parliament. A standing official is charged with reviewing the waterfront in terms of anti-terrorism law, and has a statutory mandate to do so every year under the various U.K. anti-terrorism laws.
As the example, Lord Carlile issues reports that are generally controversial; and no one is happy with them. Civil society and government object to various aspects of these reports but they provide a continued dialogue. As a consequence of these reports that feed into continued parliamentary deliberations, the reports become expert evidence, if you will, for parliamentary deliberations. They also generate or galvanize response from executive government.
In the Blair years and now with the current government in the United Kingdom, when a report comes from Lord Carlile, the government feels compelled to respond. In this way, access information comes out of government about their current thinking, which is more than I can say about what we have in Canada. The government's position on all these issues is more or less a cipher. On Bill C-3, we had no indication of what they would do with special advocates until they tabled a bill. There was no consultation.
The government was cagey in its response to the Commons three-year review of the Anti-terrorism Act on this issue. There was nothing helpful. As far as I know, the government never responded to this committee's review of the Anti- terrorism Act, although I am not sure if they are obliged to do so. Certainly, there was no response to the committee's report on the three-year review of the Anti-terrorism Act, which makes it difficult to continue to monitor how these issues develop. The issues are incredibly complex and cover many legislative areas. There is true virtue in having an independent reviewer, such as Lord Carlile who is a Liberal Democrat in the House of Lords in the U.K. — a third party in the House. He has full access to secret information and reports on whether a proposal is good and whether the terrorism law is working the way that it should work. Such feedback from a standing official tends to galvanize a response; and there is virtue in that response.
Mr. Stewart: I have nothing to add to that.
Senator Joyal: You suggest that we hold a spotlight on the issue because it is evolving and we might have a decision from the Supreme Court on the second Charkaoui case, which might touch on one or more aspects of this bill, possibly section 85 or even section 82 on detention and release.
However, we cannot extend that spotlight indefinitely unless we make a change in the rules of Parliament — either in the House of Commons or the Senate — to grant to a standing committee the continuous responsibility to monitor elements of the anti-terrorist legislation.
There are the security certificates but there are many other issues with which we have not dealt. For instance, the definition of terrorism, as you know, is imprecise. There is the overall context in which the security is monitored, the silo syndrome, as you mentioned, that was deplored in the United States last month. That was the main conclusion of the report of the September 11 investigation conducted in the American Congress.
There is the overall approach to security. It is difficult to see that Parliament will be satisfied that it has the tools to monitor this responsibility to exercise the oversight it should exercise if there is not an infrastructure within Parliament to maintain that pressure.
We are a non-permanent committee; we are a special committee. We judged it was better to keep the issue the way we have it now rather than to wait three years. The three-year review is good but, in the interim, what do we do? Do we cross our arms and say, ``We will wait three years and then take the bits and pieces apart and put it together?''
If we do not maintain the capacity or the role of oversight of Parliament, at the end we will take those measures as being permanent in the system of common law we have in Canada. In other words, they will become a normal aspect of our operation and we will put study emphasis on them only when there is a crisis of some sort, or pressure from public opinion to review an issue.
Is it not one of the considerations of our report to re-express the essential elements of monitoring the anti-terrorist tools and legislation that we have in Canada to ensure that we maintain the fundamental principle of the rule of law?
Mr. Forcese: I agree with you completely. For what it is worth, I think this committee should be a standing committee. I say this knowing I will be in trouble on the Commons side: In terms of the quality of the report that came out on Bill C-36, the Anti-terrorism Act, this committee delivered a much higher calibre report. There is more continuity in this committee and I think it would be a loss to lose it.
I hear what you are saying. The issue is obviously a resourcing one for Parliament, and a decision in the hands of you, as parliamentarians, as to how you staff the committees. However, it seems to me that, if we did not have this committee, we would need to invent it again. These issues will not go away. They become more complex with time.
One thing you may talk about in a year's time is the capacity of the Communications Security Establishment Canada to intercept communications without a judge's order; whether that is constitutional. Sooner or later that issue will hit a court. There are eight or nine issues off the top of my head that are subject to all sorts of controversy right now in anti-terrorism law. Therefore we need sustained parliamentary scrutiny of those issues on an ongoing basis.
As an outsider, that is about as far as I can go.
Senator Joyal: Senator Andreychuk raised the issue that if we ever deported someone, there would be follow-up in the media and then we can end up with a real international problem in our hands, as you described, with limited means for Canada to talk about the condition of someone who is not one of their nationals. That is an element of international law, and the United Nations addressed this issue. I think it is an important issue that needs to be addressed.
One day it will be there. We know there will be such a case one day. How the other democratic countries have dealt with that issue is part of the recommendation we have put forward that needs to be monitored closely.
The Chair: Thank you, gentlemen. It has been helpful. Your comments about the work and the calibre of work of this committee are a happy note on which to draw this meeting to a conclusion.
The committee adjourned.