Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 7 - Evidence - Meeting of June 2, 2008
OTTAWA, Monday, June 2, 2008
The Special Senate Committee on Anti-terrorism met this day at 1:32 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 Pierre Claude Nolin (Deputy Chair) in the chair.
[English]
The Deputy Chair: On March 11, 2008, following the committee's study of Bill C-3, An Act to amendment the Immigration and Refugee Protection Act (certificate and special advocate) and a to make a consequential amendment to another act which came into force on February 22, 2008, the committee received an order of reference from the Senate to study the provisions and operations of the new security certificate process introduced into the Immigration and Refugee Protection Act in the context of Canada's anti-terrorism framework.
[Translation]
This study was undertaken because of the concerns conveyed by the committee about Bill C-3 in its report on the bill and a letter to the committee on February 12, 2008 by the Minister of Public Security indicating that he would welcome the continued study by the committee of the provisions on the new security certificate in the IRPA and asking the committee to make its report and recommendations to the government by December 31, 2008.
[English]
The committee is currently hearing from witnesses on the follows topics. The first topic is the principles underlying Canada's security certificate processes. The second is how the security certificate process in the Immigration and Refugee Protection Act, IRPA, as amended in Bill C-3, compares to other systems or processes in Canada or elsewhere where confidential information gathered by intelligence agencies form the basis of much of the evidence presented against an individual. We will also look at where efforts must be made to ensure that the individual receives sufficient information to know and respond to the case against him or her including the advantages and disadvantages associated with these different systems.
Today, honourable senators, we will hear from two representatives from the Security Intelligence Review Committee, SIRC: Susan Pollak, Executive Director and Marian McGrath, Senior Counsel. You may give your remarks and then we will open the floor to questions and answers.
Susan Pollak, Executive Director, Security Intelligence Review Committee: Good afternoon to all of you. Thank you for inviting us to appear here today.
Let me first begin by extending greetings from our chair, the Honourable Gary Filmon, who unfortunately could not be here with us. Appearing with me is Marian McGrath, SIRC's Senior Counsel. We will both be pleased to answer any questions.
As senior officials who provide advice and support to the review committee, it is a great privilege to address this special committee of the Senate. I hope that our comments will assist you with your study of the provisions of the Immigration and Refugee Protection Act.
We are here today to offer insight into what has been referred to as ``the SIRC model'' and the role of SIRC counsel. These remarks are in the context of your examination of the security certificate process under the Immigration and Refugee Protection Act and the special advocates appointed to ensure that this process is fair for the persons named in the security certificates.
At the outset, I will clarify certain terminology that has been used regarding the SIRC model. There is no special advocate, no special counsel and no independent counsel involved in our process. I shall discuss this model in more detail. There is only SIRC counsel who acts on behalf of SIRC.
At times, SIRC has hired legal agents from the private bar to act on behalf of SIRC due to workload or to provide a specific legal expertise that is required by the review committee. However, these legal agents work on behalf of SIRC. I shall discuss the role of SIRC counsel in more detail later.
I know you are familiar with the activities of SIRC. However, it may be beneficial before I discuss what we consider to be the SIRC model to take a moment to describe the two principal functions of SIRC as set down in the CSIS Act. First, it is to review the activities of CSIS and report to Parliament on an annual basis on those activities. Second, it is to investigate complaints.
There are four classes of complaints that the review committee can investigate.
The first class, under section 41 of the CSIS Act, is complaints against CSIS regarding any act or thing alleged to have been done by the service.
The second class, under section 42 of the CSIS Act, is complaints in respect of a denial or revocation of a security clearance may be heard. These complaints can involve both the employing department and CSIS.
The third class is matters referred to SIRC under section 45 of the Canadian Human Rights Act that raise issues of national security. These complaints can involve the federal government department or entity against which a complaint of discrimination has been made as well as CSIS.
The fourth class is reports made to SIRC pursuant to section 19 of the Citizenship Act.
As you are aware, SIRC used to conduct investigations regarding reports made under section 39 and section 81 of the Immigration Act. That function was taken away from SIRC when the Immigration Act was repealed and replaced by IRPA in 2001.
By the operation of section 41 to section 52 of the CSIS Act, Parliament has created an avenue of redress for people who suspect that their rights and freedoms have been abused by CSIS. Parliament established a recourse mechanism for individuals who have lost employment opportunities with the federal government because of the denial or revocation of a security clearance.
Furthermore, the Canadian Human Rights Act authorizes SIRC as a secure forum where an alleged discriminatory practice giving rise to national security concerns can be investigated in the same manner as a complaint made under section 42 regarding the revocation of a security clearance.
SIRC operates as an administrative tribunal in its investigation of complaints. Pursuant to section 50 of the CSIS Act, we have the power to summons and enforce the appearance of persons, to compel them to give oral or written evidence on oath and to produce such documents and things deemed requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a Superior Court of record. Furthermore, SIRC has the power to administer oaths and to receive and accept evidence and other information, whether on oath or by affidavit or otherwise, as SIRC sees fit.
These powers are consistent with those of a commission of inquiry established under the Inquiries Act. Hence, the SIRC model is distinct from the special advocate model insofar as the special advocate does not have the statutory authority to summon witnesses and to compel the production of documents.
Given the serious consequences that the investigation of a complaint may have on the parties, particularly on those complainants who have lost their security clearance and hence have lost their livelihood, SIRC must ensure that its process is consistent with the rules of procedural fairness.
The investigations of the four classes of complaints are subject to the same procedures, which I shall refer to here as the SIRC model. When SIRC conducted investigations in relation to security certificates in the past under the former Immigration Act, the same procedures were followed as are currently followed in respect to the other classes of complaints.
The four classes of complaints all involve classified information. Section 37 of the CSIS Act provides that:
Every member of the Review Committee and every person engaged by it shall comply with all security requirements applicable by or under this Act to an employee and shall take the oath of secrecy set out in the schedule.
It will be evident that the challenge for SIRC is to conduct investigations of complaints in a manner that is respectful of the rules of procedural fairness on the one hand, and respectful of the need to protect highly classified information on the other hand.
In the course of an investigation, a complainant is given an opportunity to make representations, to present evidence and to be heard personally or by their counsel in accordance with SIRC's rules of procedure, which are made under section 39 of the CSIS Act.
However, it may be necessary for reasons of national security to restrict the participation of the complainant in the complaint process, and for the presiding member to receive evidence in an ex parte, in camera proceeding. SIRC's Rules of Procedure address such a contingency.
Subsection 48(2) of the rules provides that:
Subject to section 37 of the Act, it is within the discretion of the assigned members in balancing the requirements of preventing threats to the security of Canada and providing fairness to the person affected to determine if the facts of the case justify that a party be given the right to cross- examine witnesses called by other parties.
Similarly, subsection 48(4) of the Rules of Procedure provides:
Subject to section 37 of the Act, it is within the discretion of the assigned members in balancing the requirements of preventing threats to the security of Canada and providing fairness to the person affected to determine, when a party has been excluded from portions of the hearing, if the facts of the case justify that the substance of the evidence given or representations made by other parties should be disclosed to that party.
If the complainant must be excluded from the hearing, then the member of SIRC presiding over the investigation will rely on SIRC's counsel to examine the government's witnesses, either from CSIS or from another government department, as well as any written evidence. The presiding member must remain independent and impartial. Likewise, SIRC counsel must be independent of both government as represented by CSIS or any other participating government department or agency, and the complainant.
For greater clarity, SIRC's counsel is not an advocate for the complainant. There is no solicitor-client relationship between SIRC counsel and the complainant. The role of SIRC's counsel is more in keeping with the role of a counsel to a commissioner who presides over a commission of inquiry.
Nevertheless, insofar as the interest of SIRC is to seek the truth through testing the credibility of the government's witnesses and the reliability of the government's evidence by cross-examination of the witnesses by SIRC's counsel, then the interest of the complainant intersects with the interest of SIRC. By operation of section 39 of the CSIS Act, SIRC has access to any information under the control of CSIS, except for cabinet confidences, information under the control of the deputy head in the case of a security clearance denial and information under the control of a minister for matters referred to SIRC under the Canadian Human Rights Act.
SIRC counsel must review classified information to advise the review committee on matters related to its jurisdiction and to prepare for the hearing. This review includes the cross-examination of the witnesses in the ex parte hearings.
SIRC counsel will have contact with a complainant who is unrepresented, or with the complainant's counsel, to explain the procedure, to set dates for the hearing and to settle any other preliminary issues prior to the hearing, or any other procedural issues that may arise during the hearing.
Prior to an ex parte hearing, the complainant, or his or her counsel, may provide questions to SIRC's counsel. SIRC's counsel, in turn, may put the questions to the witnesses at the ex parte hearing.
There are occasions during a hearing while the complainant is present, when a CSIS or government witness — for example, the CSIS official who conducted an interview of a complainant for a security assessment — may be asked a question by the complainant that raises national security concerns. At that moment, CSIS counsel will object to the question, and the presiding member will ask the complainant to leave the hearing room. The presiding member will have the question asked by SIRC counsel in the absence of the complainant. Another option is for the presiding member to choose to ask the question himself or herself.
A vetted summary of the evidence or a redacted version of the transcript of the ex parte hearing is provided to the complainant. The complainant will not always know whether all the questions that the complainant requested the SIRC counsel to ask were, in fact, asked, nor will the complainant always know the answers received.
The vetted summary of the evidence and vetted documents entered as exhibits to the hearings are disclosed by SIRC to the complainant in order for the complainant to understand sufficiently the substance of the allegations against him or her, particularly regarding the loss of a security clearance. This summary allows the complainant to respond.
After reading the summary or transcript, the complainant may wish to have a different CSIS witness called and cross-examined by SIRC counsel. The complainant will communicate that request to SIRC counsel. Hence, there are occasions when the complainants and SIRC counsel must speak, even though SIRC counsel has had access to classified information. There have been no instances when SIRC counsel, bound to secrecy, has inadvertently released classified information to a complainant.
SIRC counsel, as well as the chair, the members and staff of SIRC, are highly trained regarding the care that must be taken regarding classified information. We are also trained regarding the storage, the transportation and communication of classified information: Our premises are secure, our computer networks are secure and our hearing room is secure.
All summaries of evidence, documents or correspondence containing CSIS information are vetted by CSIS before SIRC releases the documents or correspondence to the complainant to ensure compliance with section 37 of the CSIS Act.
The SIRC model is predicated on an institution that has been in existence since the inception of CSIS in 1984. SIRC has office space fitted with computer workstations on site at CSIS headquarters. Additionally, we have a working arrangement with CSIS to access and review CSIS classified information on site.
The members of the review committee and SIRC counsel have the benefit of an institutional memory. Moreover, the review committee and SIRC counsel have the support of research analysts who are trained in security intelligence issues. SIRC personnel have extensive knowledge and experience regarding ministerial directives and CSIS operational policy — for example, those operational policies that pertain to human sources, arrangements with foreign intelligence and security agencies for information sharing and arrangements with domestic agencies.
The review function, combined with the investigation of complaints function, adds depth to SIRC's understanding of security intelligence issues. SIRC counsel has access to SIRC research studies relevant to the issues raised by complaint investigations. Likewise, a complaint offers another window into the operations of CSIS and may provide further insight for a research study, or even lead to the subject of a review.
This concludes my remarks about the SIRC model as it exists today and has throughout our history. If you have any questions, Ms. McGrath and I will be most pleased to answer them.
The Deputy Chair: Ms. McGrath, will you wait for questions or do you have something to add?
Marian McGrath, Senior Counsel, Security Intelligence Review Committee: I will wait for your questions, senator.
The Deputy Chair: Before I open the floor for questions, I will ask you if you agree that we may send you questions, in writing, other than the ones that will be asked of you this afternoon. I hope you will answer those questions.
Ms. Pollak: Certainly.
Senator Baker: Welcome, witnesses, to the committee. The witness mentioned an institutional memory. Some of us around this table have a much longer institutional memory than the witnesses in relation to both this subject and the operation of the SIRC model prior to 1988.
Your evidence before the committee is that the same process that you defined as the SIRC model has been in effect from the beginning — since about 1984-85 — is still in existence in the act and is still followed.
The Supreme Court of Canada, in their judgment that caused the Anti-Terrorism Act to be redone, identified the SIRC process, and also the Canada Evidence Act as being the other model that was available to the government to address the problem. The special counsel was referenced by the Supreme Court of Canada, but they said — the same point you made — that the special advocate does not have the power that you have, for example, to call witnesses.
What other advantage is there to the SIRC model compared to the model that was instituted by the Government of Canada in changing the Anti-Terrorism Act? What other major difference is there, apart from the fact that, in the SIRC model, the counsel can call witnesses and they have the resources to conduct almost a full defence, whereas under the present system, as now instituted in law, those resources do not exist? Is there any other difference?
Ms. McGrath: Senator Baker, one distinction is, as Ms. Pollak explained, when I have had access to the classified information to prepare for the hearing, I can still have contact with the complainant, or complainant's counsel, whereas I believe that in the special advocate system now under Bill C-3, the special advocate no longer can have that communication. My other understanding is that between special advocates, there is not a network or way to communicate with each other.
There is no solicitor-client privilege between myself and a complainant. There are times when I must speak to them to set a hearing date or settle how many witnesses they want to call; or even in the middle of a hearing, I may need to ask, is there a way you would like me to frame that question?
For practical reasons I must be able to communicate. On the other hand, I have taken an oath of secrecy and we are highly trained in protecting classified information, so I believe that is one aspect of our model that is not available to the special advocates.
The other one — again, I am not an expert in the special advocates model — is that we have what we call a secretariat of sorts, where the committee is supported in their investigations and in their hearings. We have counsel, support staff and researchers, whereas my understanding is those facilities and that personnel have not been put in place to support the special advocates. I am aware of two distinctions, in addition to what may not have been explained.
Senator Baker: As you probably are aware from watching the television coverage of our hearings before regarding the bill, in the short period of time we had, the big problem was in addressing what the Supreme Court of Canada said; that someone who is under detention, imprisoned, must know why they are there. They must have some specificity; they must know at least the substance of why they are in jail.
Under your system that you have described, in the case of the material that is considered to be in the national interest and that cannot be disclosed, either a summary or a redacted form of that evidence is given to the accused or to the person who is instituting the inquiry on your behalf. Is that correct?
Ms. McGrath: Yes, senator.
Senator Baker: That is another major difference in what we have presently under the act.
I find it incredible that you have identified the very points whereby your system is different from the special advocate system that we have instituted — the three points that the Supreme Court of Canada noted, and the British House of Commons noted in their report, that were wrong with their special advocate system. This situation was pointed out by the British House of Commons and the Supreme Court of Canada prior to the institution of the special advocates in the case of Canada.
We looked at some of the case law regarding your model as it was instituted back in the 1980s and the 1990s, and the appeals that arose from it. There appeared to be a fairly sensible progression of matters. On the one hand, the person who is the applicant would have communication with the solicitor or the Attorney General's office as to what the problem was, and then immediately upon your entry upon the scene, you would provide a detailed summary to that person of what you are about and what you will do. You will keep them informed as your investigation progresses as to what you discovered along the way and how you can be of assistance to them. For anything that is declared in the national interest, you provide a summary of that evidence to them.
It seems to me a solid model, almost like the Canada Evidence Act, but certainly at odds with the present system that we have of special advocates. Do you conclude that your model is somewhat different, somewhat more small-``L'' liberal, in meeting the challenges of the Supreme Court of Canada in their decision that caused the change in this legislation?
Do you believe that your model has a lot to offer to persons who are in those circumstances? That is what we call a leading question.
Ms. McGrath: Right: Senator Baker, on specific questions about the Immigration and Refugee Protection Act, you may wish to ask Mr. Cameron, who will follow us.
Senator Baker: He is your outside counsel, is he not?
Ms. McGrath: Yes, but he is also special advocate. My understanding is, under IRPA, that the person named in the certificate receives a summary, and those summaries have been posted on the Federal Court site. I do not think you can categorically say that they do not receive a summary, but you may want to ask him specifically about that.
My other point in response to your question is that our model is more as if we were a commission of inquiry ourselves. We represent the commission of inquiry in its inquiry. I do not know if we can draw perfect parallels or offer a perfect solution. My understanding is that summaries are given and now that the special advocate will be able to challenge the government's evidence or information against the named person —
Senator Baker: I am sorry, Ms. McGrath —
The Deputy Chair: Why not put your name on the second round of questions?
Senator Baker: Sorry.
Senator Joyal: I want to come back to one point Senator Baker raised, which is the capacity for the SIRC counsel to keep in touch or maintain communications with the complainant. Let me read you section 85.4(2) of Bill C-3. I do not know if you have a copy of Bill C-3 with you?
Ms. McGrath: No, we do not.
Senator Joyal: Clerk, can you provide the witness with a copy of Bill C-3?
Proposed section 85.4 of IRPA pertains to the special advocate and the specific restrictions. Once the special advocate has seen the elements of information submitted to the judge, there are restrictions on communication, which are mentioned in section 85.4(2):
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 and subject to any conditions that the judge considers appropriate.
I understand from your testimony that such a procedure does not exist inasmuch as SIRC counsel is involved in a complaint procedure. Is that correct?
Ms. McGrath: Yes.
Senator Joyal: Does it mean we need that specific section of the act to maintain the confidentiality and the security of protected information in the context of the procedure of the special advocate if we were to follow your experience with SIRC counsel? It is a bar question.
Ms. McGrath: I have to think about that. Obviously, Parliament is concerned with the protection of classified information, which is a serious concern.
Senator Joyal: You have the same concern.
Ms. McGrath: Yes: All our disclosure provisions are subject to section 37 of the CSIS Act, which Ms. Pollack read. We take an oath of secrecy. All our documents and correspondence are vetted by CSIS to ensure that classified information is protected. However, I do not need to go to the chair of SIRC if the complainant asks me when the hearing is. I can simply tell the complainant without seeking authorization of the judge or the chair first.
If someone understands that the hearing has been completed and asks when they can expect to have the report, I could tell them when it was signed, and that it is being vetted by CSIS. Under this proposed legislation, a judge must authorize the special advocate before the special advocate can communicate in any way, even on procedural matters.
Senator Joyal: The special advocate might be presented with information that the special advocate might want to test or seek supplemental information to better balance the interpretation of the risk. In the SIRC model, can SIRC counsel go back to the complainant and request additional supplemental information?
Ms. McGrath: If the SIRC model, as a commission of inquiry, were investigating an alleged misconduct, for instance, and if the chair, the presiding member or I were to say that it would assist the investigation in understanding of alleged misconduct — maybe there was no misconduct — we could ask the individual if any other witnesses were present when CSIS allegedly harassed the individual. We could suggest that the individual call the person who was in the room at the time. The burden of proof, under section 1, is on the complainant on the balance of probabilities to show the misconduct. Independently, the chair might ask for the name of the witness, and we could contact that person ourselves. We could have that opportunity.
Yes, there would be occasions when it would be in the interest of the committee to have that additional witness, a letter or some other document that could either prove or disprove the matter. It is all part of the fact-finding activity.
Senator Joyal: I will put the question to you in a different manner. You said that SIRC counsel work under oath and that they take the oath seriously. To date, you have not had any breach of security of information, as Ms. Pollak testified in her opening remarks.
Why should we be concerned about applying a greater limit to the special advocate, in terms of access to the person who is the object of a security certificate, than you have at SIRC? Is there a greater risk of dropping information under the special advocate model than there is under the SIRC counsel model?
Ms. McGrath: Senator, you are asking for my personal opinion. Certainly, we at SIRC come from a culture of protecting classified information. We work in it, are experienced in it and are highly sensitive to it. All our staff members have their antennae up when we want to communicate to complainants, for example about a delay on an immigration matter. CSIS might say there is no substance to that delay because they have already given their advice. I will not tell that to the complainant unless CSIS authorizes me in writing to say that CSIS already gave that advice to Citizenship and Immigration Canada. It might seem as banal as that but we know that because we have been taught and trained that way, and we work with it.
I cannot speak to the members of the private bar who have been appointed; and I am not sure who they are. They might not have that same degree of sensitivity that we have because we have worked in that area for so long.
Senator Joyal: Your comment is linked to the fact that SIRC counsel are more involved regularly in the procedure than are the special advocate counsel, who could be selected and might be less sensitive to security issues.
Ms. McGrath: That could well be, senator. They are litigators and we come from a different world. Our world is unique and bears a unique expertise.
Senator Andreychuk: I hope we are all exploring the same ground. I ask for clarification on the 2001 immigration bill. Did your role change, or did the role of CSIS change?
Ms. Pollak: It was our role.
Senator Andreychuk: You now have no role with respect to immigration matters. Is that correct? It seemed to be more sweeping than I recollect the immigration bill being.
Ms. Pollak: That is correct.
Senator Andreychuk: If someone is not allowed into Canada under any status, can they make a complaint to you and, therefore, it would be restricted only to a complaint on CSIS activity?
Ms. Pollak: Yes, that is correct.
Senator Andreychuk: How many of those cases have you had in the last five years?
Ms. McGrath: Do you mean people who have not been able to obtain their permanent resident status as opposed to the security certificate?
Senator Andreychuk: Both: How much crossover is there of someone under a security certificate or any other immigration process where they feel they have not succeeded in making their case? Do they use SIRC as an avenue to continue and further their position?
Ms. McGrath: We have not received any complaints with respect to security certificates.
However, we have had complaints regarding the quality of advice that CSIS may have given to Citizenship and Immigration Canada. We had one complaint in the last year.
We also receive numerous complaints regarding delay allegedly caused by CSIS in providing their security assessments to Citizenship and Immigration Canada. The delay could be caused by Citizenship and Immigration Canada itself, but the individual does not know who is holding up their immigration process. Therefore, we have had numerous complaints of delay.
Senator Andreychuk: Under the security certificate, as recently amended by Bill C-3, there is an enhanced opportunity for a review of the security certificate process, to put it in layman's language. Is it possible for someone under that review in a court to make a concurrent application to CSIS? Can they use the information they received in the court in your case and vice versa, subject to security concerns?
Ms. McGrath: The CSIS Act is broad. Section 41 says that any individual may complain about any act or thing done by CSIS. If they want to complain about the quality of advice provided by CSIS to the ministers for issuing the security certificate, yes, they could bring a complaint concurrently. We have not had that situation happen, but it could.
The problem is that we are only an investigative body. We are an administrative tribunal. Ms. Pollack described our powers. We cannot offer any remedy. We cannot issue or enforce any orders. We only investigate the facts supporting the complaint to determine whether, on the balance of probabilities, the complaint is upheld or dismissed. We can only make findings of fact and make recommendations.
Senator Andreychuk: It is not binding.
Ms. McGrath: Exactly: It is only instructional.
Senator Andreychuk: In your process, do you have contact with the complainant on substantive matters in addition to procedural matters?
Commissions now give special status to a complainant. Does the complainant have a right to counsel and does the complainant have any special status before you?
Ms. McGrath: Senator, you had about four parts to the questions. I want to ensure I answer all of them.
On the substantive matters, as I said, it could be an issue of law and fact; whether another witness was present or another person observed this alleged misconduct. Therefore, we could have contact to discuss that particular issue.
Substance could be law as well. If we are trying to prove discrimination, we would want to know how one proves discrimination in regard to section 45 of the Canadian Human Rights Act. The nature of our communication is not limited only to procedure. We can ask questions to assist the committee.
What was your next question?
Senator Andreychuk: Does the complainant have a status in your commission and investigation? Do they have a right to counsel and what is the role of counsel if they do have that right?
Ms. McGrath: Under the rules, the complainant is called a party. The party has a right to be present except in instances of national security. Therefore, the complainant is party to the proceedings.
The CSIS Act says that the complainant has a right to counsel. We do not pay for that counsel. They must retain their own counsel. They are unrepresented most of the time.
If present, counsel will lead in direct examination for the complainant or any witnesses. In those instances where a CSIS or government witness is not giving classified information as testimony, the complainant's counsel can cross- examine the witnesses. The complainant's counsel can also make oral or written submissions.
Senator Andreychuk: However, my understanding is that as soon as classified information is the subject of your inquiry, counsel and the complainant will not be in attendance.
Ms. McGrath: You are right. Even the lawyer representing the complainant cannot be in the room at the same time. The same rules hold for communications with the complainant or their lawyer. A lawyer representing a complainant does not have any special status. I could not tell the lawyer something that I am not allowed to tell the complainant.
Senator Andreychuk: You say that you do not need to refer back to anyone to have contact with the complainant or the complainant's counsel, and that comes from a rule. Is that correct?
Ms. McGrath: No, it is the opposite. The statute for Bill C-3 says that the special advocate must be authorized by the judge. The equivalent provision is not in the CSIS Act.
Senator Andreychuk: I thought you said your authority comes from rules.
Ms. McGrath: Our rules of procedure do not restrict our contact.
Senator Andreychuk: Therefore, because there is no restriction of contact, you have taken the position you can have contact and no one has challenged that.
Ms. McGrath: That is correct.
Senator Andreychuk: I will ask another witness whether, under the rules of the court, the court could set up procedures and rules that would enable counsel to work back and forth, which seems to be the way you are working with regard to contact. I will leave it for now, to be fair to the other senators.
Senator Segal: I want to be clear about both the role of CSIS relating to the admissibility of an individual to our country and the inability of SIRC to be involved in that process except under the general section regarding all CSIS activities. As I understand your testimony, SIRC no longer is a normative place of appeal for people who have been excluded.
If someone were concerned about the quality, fairness, accuracy or timeliness of CSIS advice to Citizenship and Immigration Canada, or any action of CSIS — about the exclusion of an individual — they could go to SIRC. They could notionally access SIRC in that process. Is that correct?
Ms. McGrath: Yes, that is true.
Senator Segal: If I understand Ms. Pollack's helpful delineation of the differences between the special advocate's process and the SIRC process, those matters would be dealt with under different rules. Your rules are a little more generous to the rights of the complainant in the context of the hearing dynamic than the ones anticipated in the legislation we are discussing today.
Does it trouble you that we would have two sets of rules that treat the complainants' rights differently? You were good enough to say Parliament is concerned about the protection of national security. Parliament is also concerned about the protection of human rights, the fairness principle and equality before the law.
As professionals serving the body you serve, do you have any concern about the difference in rules that would exist in both places? This is without questioning, for one moment, the motivation of the Crown with respect to your rules or the motivation of the Crown with respect to the other rules. Does it cause you any concern that you might find yourself caught in a context where your rules afford the complainant greater manoeuvrability than might be anticipated in the legislation we are discussing.
Ms. McGrath: I can refer to the Supreme Court of Canada decision in Chiarelli. That decision predated Charkaoui by many years. The Supreme Court analyzed the process in place before SIRC; the same process that we have discussed with our existing jurisdiction.
The model is fair. I believe the people who drafted the CSIS Act when it came into place in 1994 were visionary. It was a fair and balanced model. I believe that IRPA attempts to do the same thing.
We have Federal Court judges involved and I pay a lot of deference to them. There may be a trade-off where they have a Federal Court judge as opposed to a committee member.
I am not sure if I am answering your question. I want to say that the simple answer is: If you are all familiar with the Chiarelli decision, it set out well what the court has acknowledged. That was the section 7 Charter issue, as well. The SIRC process was found to balance the national security interests with the procedural fairness issue, and met the interests.
Senator Segal: I take it, therefore, using the court decision as a foundation, you are comfortable with the notion that someone against whom a complaint has been made, or a complainant, can be excluded from the room when a response is given that is deemed to be of a national security nature; they are prohibited from hearing what is said.
Ms. McGrath: Yes.
Senator Segal: Magna Carta notwithstanding, you are alright with that. Is that correct?
Ms. McGrath: Absolutely. It is not a graceful solution. However, the members of SIRC, with their integrity, impartiality and independence, and I are testing the credibility and reliability of that information. We do that vigorously.
You may want to ask CSIS. They probably can attest to that as well. I believe we have, in some way, circumscribed that particular event or activity so that the interests of the complainant are met insofar as the committee also is arriving at the truth. Therefore, yes, it is as fair as it can be.
Senator Segal: Finally, moving from the theoretical to the practical, have there been any incidents in your recollection of individuals who were dealing with the certificate question before one format who, under the general provision about questioning any and all CSIS activities before SIRC, have tried to gain access to what is a slightly more generous range of rules in the SIRC case than exists elsewhere? Has that situation ever transpired to your knowledge?
Ms. McGrath: No, not to my knowledge.
The Deputy Chair: Before I move to the second round, perhaps we should remind the witnesses that, after the hearings today, they will receive a copy of the transcript. Witnesses will not be allowed to correct it unless it is minor correction. However, if they want to add to your testimony through a letter of comment, they will be allowed. That will give time to reflect on questions or answers that may be troubling for witnesses now, given that time is of the essence. It will give an opportunity to comment afterwards.
Senator Baker: I do not have any further questions. I want clarification on one particular point; namely the availability of a summary, a redacted form of the evidence — an edited form or a blackened-out form — of the impugned material that is alleged to be in the national interest and therefore excluded.
In your particular model, the applicant has access to such material and the applicant has, of course, access to all the disclosure that is judged not to be of concern in the national interest. However, the applicant has access to either a summary or an edited form of the material that is alleged to be in the national interest. Is that correct?
Ms. McGrath: Yes, senator.
Senator Baker: That is quite a difference from the —
Ms. McGrath: Even under the CSIS Act, for instance, with respect to the denial or revocation of a certificate clearance — not a certificate but a clearance — before the hearing begins, the individual is to be given a statement of circumstances for that person to understand the reasons for the denial. Likewise, with the Canadian Human Rights Act, when a matter is referred to SIRC, there is also provision requiring SIRC to give the complainant a summary or statement of the information for the complainant to understand why the matter is of national security.
Senator Baker: What you referenced as the statement of circumstances can be extensive in some cases, can it not?
Ms. McGrath: It can be. It can be an arm-wrestle to be on the same wavelength. It is also possible to come to a point where we would receive notice by the Attorney General under section 38.01 of the Canada Evidence Act saying that, if we were to disclose all that information or that summary to that extent, the Attorney General could take us to the Federal Court under section 38.
I have encountered this situation because we have always been able to negotiate and arrive at a negotiated settlement or a version of the documents that can be released.
Senator Baker: You are an administrative tribunal and not covered by the Canada Evidence Act, are you not?
Ms. McGrath: It does say ``proceeding'' under section 38 of the Canada Evidence Act and ours is a proceeding. We have had letters saying that they will take us to Federal Court. I defer to those.
Senator Baker: The problem we are addressing, because of all the evidence we have heard, is that the person in detention in our case — which is a different matter than an administrative decision-making tribunal — is in need of the particulars of the particular transaction that is being alleged. Therefore, in your particular model, the person has more access to the particulars than they would if they were in the setting under this bill under. It is interesting. Thank you.
Senator Joyal: I want to refer to the decision of the Supreme Court of Canada in the Charkaoui case. Do you have a copy?
Ms. McGrath: No, I do not.
Senator Joyal: I refer to paragraph 76 of the decision. It is the paragraph dealing with the SIRC model. You might be familiar with paragraphs 70 to 80 of the decision.
In paragraph 76, the court said:
Certain elements of SIRC process may be inappropriate to the context of terrorism. Where there is a risk of catastrophic acts of violence, it would be foolhardy to require a lengthy review process before a certificate could be issued. But it was not suggested before this Court that SIRC's special counsel system had not functioned well in connection with the review of certificates under the Immigration Act, nor was any explanation given for why, under the new system for vetting certificates and reviewing detentions, a special counsel process had not been retained.
It seems that the only arguments that the Supreme Court retained in relation to the SIRC model, to be implemented in the review of the security certificate, is the aspect of its lengthy procedure. The court said it would be foolhardy to require a lengthy review process before a certificate could be issued. What is the length of the procedure that you normally would face, from the beginning to the end?
Ms. McGrath: In the context of the Immigration Act, my understanding is that when SIRC issued a report, that report was reviewable by the Federal Court, so it was an extra layer. I believe that part of the reason for the length of time involved was that layer. Now they have taken out SIRC and they have only the Federal Court, because probably on many occasions they ended up in the Federal Court on judicial review anyway.
In terms of a length of, let us say, a section 41 or section 42 security clearance —
Senator Joyal: One of your four —
Ms. McGrath: Yes; it can take two years. When we think about setting a matter down for hearing, assembling busy lawyers and busy members of the committee in the same room in the same city at the same time, that length of time is the reality; the discipline of a litigation practice.
Again, the reality of vetting documents is that it does not happen overnight. It can take months to obtain a summary or a transcript review. That is the nature of the beast, dealing with classified information. By the time a complainant has a report in hand, it could be two years.
Senator Joyal: Under the model that Bill C-3 contemplates, will the process be more expeditious?
Ms. McGrath: They certainly will not be subjected to judicial review. That part of the process has been eliminated.
I think the judges can order people — we cannot order people — to do something but they have much more of a discipline. They have contempt proceedings if things do not move along quickly enough. I would say they can have documents vetted or have people before them more quickly than we could.
Senator Joyal: On the other hand, they can end up in the Supreme Court also, so how long does it take at the end of it?
Ms. McGrath: That is true.
Senator Joyal: You can still end up fighting in the court on the same basis; you have experimented with that in the past.
Has the issue of length of time for the procedure to be completed ever been an aspect of your operation that has bothered you?
Ms. McGrath: We look for certain efficiencies. We have pre-hearing conferences to try to eliminate any procedural matters, to make the hearing proceed more efficiently and quickly. However, as I said, it is necessary to have documents vetted. I am not critical of anyone. It is necessary for CSIS to be thorough in their vetting of documents. I would never want to release something that could injure this country's national security, so it is necessary.
Senator Andreychuk: We are comparing your process and the new process. It is becoming clear to me that, while the process has similarities and differences, the objectives of the two processes are different.
Am I correct that the purpose of your inquiry is to determine the veracity of the CSIS information? In other words, are they doing their job well? Are they using and relying on credible sources? Does the information stand the test of being good information to conclude that national security is involved?
In the court, the national security issue is balanced by the rights of the accused and the ability of the accused to gain freedom, whether it is on a recognizance or otherwise. In terms of objectives, the court will look at whether this person needs to be detained under a certificate in any manner because this person is a security risk, whereas you will look at CSIS operations.
Am I correct, or are you looking at the rights of the accused? I do not want to short-circuit it. Obviously, if you have good information — good, credible, reliable sources — that helps the rights of the accused but you are not there to determine the innocence or guilt of the accused.
Ms. McGrath: We have to flip it all around. Ordinarily, people come to us because they allege misconduct against CSIS. We want to know whether they have the evidence to prove that complaint on the balance of probabilities. Then CSIS, of course, has the opportunity to refute the complaint.
In a security clearance denial, that will be the advice of CSIS. We will look at the quality of that advice to see whether it was factually based when the advice was given to a deputy head.
We are not looking at the rights of individuals in the same way as section 7 rights — liberty and security of the person. However, when one thinks about someone's livelihood, we would take that privilege seriously. We need a fair process before terminating someone's livelihood. It is not a human right protected by the Charter, but it has serious consequences to the individual.
Likewise, if a matter is referred under the Canadian Human Rights Act, a matter of discrimination, that matter could be similar to a section 15 equality issue. Any report we make would have serious consequences for the employing department or the individual, so the process must be equally fair.
Senator Andreychuk: I am sure that is correct that they should be fair; otherwise we would not have the process. What we are struggling with is to try to have the best process for both objectives.
It seems to me that it is in the best interest of the person who makes the complaint to you, and in the public's interest, that the sources of information are reliable, accurate and all those things that go into a good, safe environment for Canadians. They should use their skills to the nth degree to come to a conclusion — a conclusion that has a lot of ramifications to Canadians, and perhaps the individual, the subject of that scrutiny.
When you go to court, the person relies an awful lot on CSIS to determine whether the information is accurate. However, the court will have other sources and the court can utilize all the usual information-gathering techniques that either counsel for the person or the government brings forward.
Do you rely on anything outside of a scrutiny of CSIS documents to come to your conclusions? Do you go to extraneous sources, other sources?
Ms. McGrath: Yes, senator; if we believe that there is another document or other witnesses that are relevant or pertinent, certainly we can summons them.
Senator Andreychuk: How many times would you go offshore to solicit a witness from another country or obtain information on other security services?
Ms. McGrath: We have never done that. Complainants have brought non-Canadians from other countries to testify in our complaints proceedings but we have not paid for such a person to come to Canada.
Senator Joyal: Senator Andreychuk has raised a question. Is there a difference in the objectives of the special advocate procedure? I am looking at paragraph 71 of the Supreme Court decision in Charkaoui, before the amendments to the IRPA in 2001, whereby SIRC had the power to vet findings of inadmissibility based on alleged threat to national security. A ministerial certificate could not be issued without a SIRC investigation.
That decision answers Senator Andreychuk's question. You already had the procedure to vet the admissibility of a certificate, which means that the procedures before were working. We amended IRPA in 2001, which did not work because the Supreme Court in Charkaoui concluded that it is not right.
The question is: should we go back to the previous procedure, according to paragraph 71 of the Supreme Court decision in Charkaoui?
Senator Andreychuk: That is only part of the answer, because, with respect, I understood section 71. However, should we not examine the objectives now that we have had the experience of the functioning of both?
Senator Joyal: I agree totally. My only point is that the Supreme Court considered the process to be lengthy before a certificate could be issued. That was the only element that the Supreme Court qualified on the basis of the former procedures that you followed before a security certificate could be issued on the basis of a need to move immediately because of risk of catastrophic act of violence. That point is the essential one in my opinion of the Supreme Court decision.
Ms. Pollak: We understand.
[Translation]
The Deputy Chair: On behalf of the committee, I thank the witnesses for their very interesting presentations. As I said earlier, a transcript of your remarks will be provided to you so you can make minor corrections. Also, if you want to supplement your written testimony, you are welcome. And we will write to you to ask a few questions my colleagues and I may have overlooked.
[English]
I welcome our next witness, Gordon Cameron from Blake, Cassels & Graydon. Mr. Cameron, please proceed with your opening remarks, after which we will open the floor to senators' questions.
Gordon Cameron, Partner, Blake, Cassels & Graydon LLP, as an individual: I do not have a set of opening remarks, per se. I appeared before the committee earlier and expressed my views on what I considered to be weaknesses in the then Bill C-3. Since that time, I have had a great deal of discussion with other people. I say ``other people'' because I am on the roster of special advocates. An initial cohort of special advocates were trained quickly in order to comply with the Supreme Court deadline to have the system up and running within a year of the decision. The group of special advocates worked a great deal and on our own time to share our views about whether our initial impressions of difficulties in Bill C-3 were shared by the others. Surprisingly, among a group of lawyers where it can be difficult to achieve agreement even on the time of day, at times, there was close to unanimous agreement that the difficulties identified by Professor Craig Forcese, Lorne Waldman and me when we appeared earlier needed to be corrected for the act to work as intended by the Supreme Court in the Charkaoui decision.
I have since participated in the second cohort of special advocates training because I believe we cannot go to the well too many times in obtaining information about this type of work. Again, there was a strong sentiment among the special advocates that problems needed to be fixed at one of two levels. Either the legislation should be amended or — I think this option is a poor second best — in each case, the lawyers for the named persons and the special advocates will need to approach the judge on an order-by-order basis to fix the problems with the existing legislation.
I now have been involved in two security certificate cases as a nominated special advocate. We are already working out the order we need from the judge to correct the errors in the legislation. In other words, the first thing we do upon entering the courtroom is to request leave for the special advocate to talk to the government lawyers about the proceeding.
I cannot call the government lawyers and ask them if they are available next week for a motion. I am prohibited by the act from that contact. I am prohibited from telling my secretary that I am going to a closed proceeding today. The special advocate and the general or outside counsel, the lawyer for the named person, cannot talk to each other. I cannot tell the lawyer for the named person that the hearing starts next week or that we heard evidence for five days this week.
I have to believe that error occurred in the haste of drafting the legislation to impose such an overbroad restriction as that found in proposed subsection 85.4(2) that prohibits the special advocate, once they have seen the closed information, from communicating with any person about the proceeding. I think the drafters of that legislation would say that is not what they meant. They will say, we meant do not disclose the content of the information you have seen; do not spill the beans; do not let anyone know the secret information. Instead there is a restriction on any communication about the proceeding.
My views on the legislation have not changed materially from the last time I was here. In some ways, I am more confident expressing those views because I have had the chance to talk to the other special advocates. I have not heard any of those special advocates speak in support of the two particular problems that were identified by Professor Forcese, Lorne Waldman and me.
The first problem is the restricted access to documentation given to the special advocate. Unlike when SIRC conducts an investigation, the special advocate sees only what the government chooses to show the judge.
Second, after seeing that information, the special advocate is restricted from contact with the named person or with any person, unless the special advocate obtains an order from the judge allowing such contact.
As I said last time, there is an easy legislative fix for those two problems that preserves the legitimate concern that there can be a risk when a person with confidential information communicates with someone else. There can be a concern that there may be something in the government's file that the special advocate should not see.
The legislative fix is to have it default the other way. Instead of the special advocate obtaining only what the government decides the judge should see, the default could be that the special advocate sees the entire government file unless the government satisfies the judge that there is something the special advocate should not see. Simply reverse the onus.
I should not have to go to the judge to say, I have never seen this file, but I have a hunch there is something in there. That proposition is difficult to make, and we would be accused of being on a fishing expedition. The legislation would indicate that the special advocate sees everything unless the judge orders there is something that the government counsel has proven is not relevant to the case and that the special advocate should not see.
The same reverse default could apply to access to the named person. That is, the special advocate has access to the named person after seeing the confidential information unless the government establishes there is some risk in that access.
I have completed about 20 hearings for SIRC where I was not subject to either of the constraints that I will be subject to as a special advocate under Bill C-3. Without providing particulars, I can say that access both to the entire file and to the named person after seeing the file have made a difference in the work I have done as outside SIRC counsel.
I have hands-on experience with a regime in which I was not subject to either of the restrictions that Bill C-3 will impose on special advocates and it has made a difference. I have found material documentation that was, in good faith, not thought to be relevant when initially provided to SIRC. I have had communications with named persons about the allegations against them that I have been able to undertake without any disclosure of secret information. However, this communication has allowed me to rebut allegations being made.
On the point of material documentation, I stress that we can assume the government will act in its best good faith when deciding what information to put before the judge. However, as I think you heard from Professor Kent Roach, a person invested in convincing someone that a person poses a threat to the security of Canada may have a different perspective on what is relevant to that question from a person invested in challenging that assertion. Different eyes may see different information as relevant. Therefore, why do they not give the special advocate the whole file unless the Crown can convince the judge there is something the special advocate should not see?
That way, judicial discretion exists to protect the security of that particular piece of information. However, the special advocate can look at all the information and may see something that, in good faith, the government lawyers did not think was relevant to the case, but the special advocate finds and, perhaps the judge will agree, is important to the case.
I am about to embark on a special advocate role with two important tools missing from my tool kit that I would have when I am doing a SIRC investigation.
I welcome any questions.
Senator Baker: That presentation was fascinating, Mr. Cameron. You have a vast experience in these matters, in similar cases.
You highlighted two problems with the legislation as it relates to the role of any special advocate. You attribute the problems to being an error and, certainly, not the intent of the legislators in passing these two particular measures that now impact on you.
Mr. Cameron: May I correct you? I do not want you to get off on the wrong foot on this point.
The point I believe to have been a drafting error is the restriction on me communicating with anyone about the proceeding. I think that language was over-broad. I think the two points, the restricted documentation and the restricted access to the named person, were intentional policy decisions made by the drafters of this act.
Senator Baker: I was searching for the Supreme Court of Canada decision, paragraph 79 or 80. Here it is, given to me by Senator Joyal.
In the British legislation, the Supreme Court of Canada highlights this point at paragraph 83 of their judgment. The committee listed three important disadvantages faced by special advocates in Britain. This judgement is prior to the introduction of this legislation:
The Committee listed three important disadvantages faced by special advocates: (1) once they have seen the confidential material, they cannot, subject to narrow exceptions, take instructions from the appellant or the appellant's counsel;
Therefore, you are saying the legislation we passed says special advocates cannot even see them, let alone take instructions. Is that your point?
Mr. Cameron: Yes: It is correct that a difficulty the U.K. special advocates themselves have expressed with their system is the limitation on their ability to take instructions from the named person once they have seen the closed file. Despite that deficiency in the U.K. model having been noted by the Supreme Court of Canada, we adopted it in Bill C- 3.
Senator Baker: Therefore, how do you conclude that it was a drafting error?
Mr. Cameron: That is where I tried to correct you. I do not believe it is a drafting error. I believe the restrictions on the documentation to be given to the special advocate and the restrictions on access of the special advocate to the named person were conscious policy decisions made by Parliament in passing this legislation.
The drafting error, as I call it, is the draconian prohibition on the special advocate to say anything to anyone about what is called ``the proceeding,'' once the special advocate has seen the information. That prohibition strikes me as so absurdly over-broad that it must have been a drafting error.
Senator Baker: You use the words ``absurdly over-broad.'' I will ask you about those words with regards to the anti- terrorism legislation.
That same word was used by Chief Justice of the Federal Court of Canada; he called ``absurd'' the wording that was instituted through the Anti-terrorism Act. He produced, in a judgment, a missive to this committee in which he said his post-scriptum comments concerning the court's experience in this matter may be relevant to those involved in the review of the anti-terrorism legislation.
Mr. Cameron, you were one of the lawyers in that particular case in which the Chief Justice of the Federal Court of Canada wrote the heading, ``Post-scriptum: too much secrecy???'' Then he made the comments that our changes to the Anti-terrorism Act, as implemented through section 38 of the Canada Evidence Act at paragraph 35, ``can lead to unintended, even absurd, consequences.''
He then proceeds in some detail to say what is wrong with the changes brought in and what problems they gave him. He then gave advice to this committee reviewing the anti-terrorism legislation.
Can you tell me why he would use such strong language as ``absurd'' in his commentary, and do you agree with the words of the Chief Justice of the Federal Court of Canada?
Mr. Cameron: Yes, I do.
The Deputy Chair: Before answering, can we have copies of that interesting document?
Senator Baker: Yes: Of course, Gordon Cameron also appeared in that case. He is the witness now before the committee.
Mr. Cameron: As the Chief Justice points out, we were all, in that case, subject to the constraint in section 38 of the Evidence Act: We were not allowed to let it be known that the proceeding was happening.
The Chief Justice points out that the irony is that, in provincial court when the matter first arose, it was said in open court, this matter is now going over to a section 38 proceeding in Federal Court. However, when it arrived at Federal Court, the Federal Court could not even acknowledge that it had the file. The lawyers could not talk about working on the file, et cetera, because we could not acknowledge the existence of the proceeding. It was Kafkaesque.
Important to understand about this post-scriptum is that there was not a motion before the Chief Justice to invalidate the secrecy provision of section 38. He, ex proprio motu — of his own initiative — went into the detail he did in paragraphs 34 and following to point out the over-breadth of the secrecy requirement of section 38. While acknowledging there might be a case where some level of secrecy is important, he said, in the general course, that secrecy requirement will not be made.
In other words, he did not have to say this; this was not an issue that some litigant was trying to make him make a decision on. He went out of his way to make this observation.
Senator Baker: Given that he cannot appear before a committee of the Senate, the only thing he could do is to say, this is directed to those involved in the review of the anti-terrorism legislation.
The Deputy Chair: Can you remind the committee of the date of that decision?
Senator Baker: The date of that decision was July 30, 2004. The law has not changed.
Senator Segal: Thank you for taking time from your schedule. I want to clarify a few things. Am I to understand that, as we are now in the process of examining the law based on an undertaking given by the Minister of Public Security, that, if the committee passed the law with some —
The Deputy Chair: Pressure.
Senator Segal: — with some rapidity so as not to create a gap of legislative coverage for the Crown, you would be more than delighted if we were to go into a more detailed analysis?
As I understand the comments you made — and I think you reflected concerns other special advocates now face — would it be your advice to the committee that, once this legislation has operated for a bit of time, yourself and perhaps other special advocates would offer maybe a memorandum of counsel?
I know you have made specific references this afternoon about specific changes. However, other issues of difficulty or unintended circumstances and outcomes may all emerge in the practice of special counsel work. You may want to have an opportunity to come back at some point and share some of those perspectives with us.
Do I understand that offer is implicit in what you are saying? I do not mean to impose upon your time.
Mr. Cameron: I have put a lot of time into this legislation already and I am prepared to put in more. If that includes coming back here to report on how things have worked in the cases that have proceeded, I would be pleased to do so. I know other special advocates want this system to work and have volunteered their time in meetings we have had. I am sure they would join me.
Senator Segal: I want to quote some things that you said in prior hearings before the committee. I do not do so for any reason other than to help you share with us how having said, for example:
Minister Day was asked earlier why the SIRC model was not adopted for this legislation. Frankly, to all three of us —
meaning yourself and two other witnesses —
— that is a mystery because that model is there; it worked for a long time; the infrastructure is there; and the expertise is there. Instead, we have adopted a model from the U.K. that Mr. Waldman and Mr. Forcese investigated and found to be lacking relative to the SIRC model.
You are a busy practitioner of the law with many people who want your advice and counsel. You have agreed, however, to be a special advocate. You agreed to be governed by a regime that I think you have been more than frank and straightforward about; you are, in some respects, deeply troubled by it. Help me understand that.
Mr. Cameron: I had done some work with Mr. Waldman and Professor Forcese in advance of their report, by way of tagging along with them when we went to the U.K. One thing that struck me there was the number of people who refused to have anything to do with the special advocates process because they felt that it was a fig leaf over an unfair system.
When this system came into place, I asked myself that same question: Do I want to work in a regime that I think is flawed? The answer is, in my view, the system under Bill C-3 is so much better than what proceeded it that I would rather work with this system to try to fix it where it is not ideal and improve on it.
Senator Segal: I want to address a specific issue, and that is the so-called access to the file. It has not been my experience — and I defer to people around the table who have been, or are, Privy Councillors and had more substantive experience — that politicians generically think up restrictions on other people's freedom. What tends to happen is that officials who are charged with the protection of national security and who operate in the best of faith, make technical regulations as to how best to accomplish that objective. Politicians are then convinced of the fashion in which they might best proceed in the public interest.
You are probably too young to remember the arresting of hundreds of people in the province of Quebec during the War Measures Act.
Mr. Cameron: I remember that. I am not that young.
Senator Segal: Not one single individual was ever charged with anything. I think Pierre Marc Johnson, the son of the former Union Nationale premier of Quebec, was arrested five times in that week. Officials determined in the Privy Council Office, with encouragement from other officials elsewhere, that the War Measures Act needed to be proclaimed. I do not doubt for a moment they were operating in the best of faith.
There is a problem the minute we begin to shave things, such as an accused or the subject of a government action no longer having access to what is in the file, for reasons of national security — defined in the best of faith by well meaning people who will take the perspective, I assume, which you referenced in prior testimony this afternoon. Namely, their point of view is that, if they are working to protect national security, they will look at every piece of information in that context. They may not see it as their role to look at the individual's rights, or dare I say something as radical as the presumption of innocence, which is the basis of our civilization.
Beyond the technicalities, which you will give, and have given, advice on and which I think the committee anticipates with great expectations, how do we deal with the violation of the principle that I think is implicit in this legislation. It is also a principle about which the Supreme Court was concerned and about which Parliament responded and this committee did its best to accommodate — of presumption of innocence, which is still deeply constrained, deeply diluted? At some level, do we give up on that principle? Do we say that the risks to national security as divined by the officials in the best of faith are so compelling that we give up on that principle, or do we try to see if there is some way to rebuild that principle? What are we saying about future legislation in this area if we do not engage on that principle now?
Mr. Cameron: As you will have gathered from my earlier comments, my view is that we do not give up. Indeed, I think we address this issue by what I have described as a simple or easy change in the legislation, where we preserve the ability of the government to withhold some information from the special advocate if the government can convince the judge that is necessary for national security. Otherwise, the special advocate sees everything.
I think, first, through the work of this committee, we do what we can — if it is your conclusion that this is necessary — to correct the legislation. As you might know, there is already a constitutional challenge of this legislation, so we might be overtaken by the courts in that regard.
Senator Andreychuk: I do not think it is necessarily a bad thing that the courts might rule again. It might shed more light on the issue.
If I can go back to Senator Segal's point that perhaps some of the public service were putting restrictions on our freedoms, it seems to me it was a slightly different proposition when we look through the anti-terrorism bill — and one that I have held dearly — which is how to balance competing rights. My right to security and to life is as important as my right to innocence; it is a question of how to balance these rights with the least intrusion on any individual.
I think we struggling with that balance in the first bill in 2001, and in the amendments now. I daresay we will continue to struggle with it because society has changed and therefore that balance must be looked at and should not consciously be forgotten by any citizens. I would not want to be the subject of any of these certificates. It is a difficult position to fight back against.
Equally, I am not sure I would want to be in the government's position and say, security issues should be thrown open and our intelligence service, which we are based on, would be a public scrutiny system. It would no longer be the intelligence system; then it would be information of everyone.
I want to return to the point, keeping that in the back of my mind. You said you had no problem when you worked in your special position with SIRC, but were you working on behalf of SIRC in that case, bearing in mind everyone else's interest? As a special advocate, do you see your role first to your client, and who is your client in this case? How do you balance those competing judgments?
I find that you wore fewer hats under SIRC — the roles were easier to define. Here, I think it must be a difficult onus to determine how to carry that role out.
Mr. Cameron: If I can make this observation, I think the point you make is critical. I will make a slight correction in terminology because the act expressly provides that the named person and the special advocate are not in a solicitor- client relationship. However, we all know that the special advocate is there to represent the named person's interests. That is not true of SIRC counsel, which is counsel to the review committee. SIRC counsel wear various hats because they must switch from giving advice to SIRC members who make decisions to acting in the role of the complainant's lawyer in a closed hearing. I had a little paragraph I would say to each witness, typically a service intelligence officer or whatever, and I suppose I would use it tomorrow if I were on another complaint. I would say: I will put on a different hat now. You know me as the person giving advice to the presiding member but now I will ask you questions as if I were the complainant's lawyer. That role will have me being mean, nasty and probing of you, and I do not want you to misunderstand; I only have a different hat on. I am not that person's lawyer; I am the presiding member's lawyer. Do not misread the aggressiveness of my questioning as reflecting a disposition on the part of the presiding member.
The situation is a delicate one. As a special advocate, I have only one person's interests at stake — the person named in the certificate. There is no ambiguity about my role in the court room. The witnesses will see me as someone who is grilling them on behalf of the named person.
Senator Andreychuk: In my view, as a former counsel, the dilemma arises in pulling out all the legal stops to help the client. I took that role seriously, as you obviously did, so counsel looks for anything within the law to help their client.
When you sat on the commission, you acted on behalf of the commission and, as we heard in previous testimony, you honed an understanding of the role of security, protecting security and creating a good security system. As a special advocate, you look at the client. How will you balance this need to continue a good and viable security system, the safety and security of the public and the integrity of the intelligence service? They are different roles.
Mr. Cameron: I agree that a special advocate, if that person were in the position of having contact with the named person or anyone else after exposure to confidential information, would have a critically important role to play in preserving the confidentiality of that information. The training given to the special advocates includes three days of grilling at CSIS precisely on the responsibility assumed, the exposure to vulnerability and the critical importance of keeping information confidential.
I heard Ms. McGrath's important comment that SIRC staff and lawyers live in a security intelligence milieu every day. For that reason, CSIS has made an effort to drill it into special advocates that they are entering this world. I should also say, and it is something that has been said by a number of people in speaking publicly on this issue, including Professor Kent Roche and others: The special advocates typically have 20 years or so of training in questioning people. Of particular importance is cross examination, the art of being meticulous in framing questions so that the person questioned does not learn any information you do not want them to know because if they had it, they could mislead the court. We are talking about people with decades of experience in questioning people. Put that experience up against an able and bright intelligence officer with two or three years of experience in interviewing someone coming into the country. The intelligence officer has seen the secret information and is trying to find out whether they can obtain more information from this person. The process is delicate but those interviewing have spent their careers honing the art of asking questions carefully. They have been trained specifically by CSIS to be acutely aware of the sensitivity of the information and the potential downside of inadvertent disclosure of it. I believe it is a balance, and I agree with your characterization of that balance we need to have. It is appropriate that the special advocate be given more liberal access to the named person once the special advocate has seen the confidential information.
Senator Andreychuk: We have learned through hearing it on television, reading it in books and by being taught that an accused has the right to know. With that right comes the security consideration such that if some of the facts are disclosed, they can jeopardize security. Much of the premise has been built around the right to know, meaning that I determine what facts are relevant. It might seem like a little point to you but it might be so fundamental as to lead to my freedom.
Will we struggle with this for a long time because no matter how we fetter a special advocate or other process, the opposing view will always be that there should be no curtailment of information?
Mr. Cameron: I do not hold that view. I believe it is essential for an effective review of security intelligence matters by the court that there be closed sessions. Those closed sessions violate the fundamental principle of the person's right to know the charges or allegations against them. We need to work hard to make the countervail for that as good as it can be because we are violating a fundamental principle — the person's right to know the allegations against that person. Instead, we provide a kind of second best — a special advocate who will fight on the person's behalf. We are violating such a critical principle that we should give that special advocate every tool possible, while being secure, to create the appropriate balance.
Senator Joyal: You opened the door to a point I want to raise on proposed section 85.1(1) in the bill. Do you have a copy with you?
Mr. Cameron: Yes, I do.
Senator Joyal: Section 85.1(1) states:
A special advocate's role is to protect the interests of the permanent resident or foreign national in a proceeding. . . .
The important concept is the protection of the interests of the permanent resident. Proposed section 85.1(3) states:
For greater certainty, the special advocate . . . is not that of solicitor and client.
The special advocate is not the lawyer or the counsel for the named person who is the object of the certificate but the special advocate there to protect the interest of the named person.
The question is: If the special advocate is to protect the interest of that person, what access should the special advocate have to be able to represent those interests of the person. The special advocate must determine what kind of incarnation in the proceedings those interests should have.
If the special advocate is to represent the interests of the named person, they must have access to the material and they can question the witnesses that the government brings forward; they can cross-examine according to section 85.2(b). It follows that if they can cross-examine witnesses, they can bring witnesses.
However, proposed section 85.2 does not state the right to bring forward witnesses unless we rely on proposed subsection 85.2(c), which states that a special advocate may:
exercise, with the judge's authorization, any other powers that are necessary to protect the interests of the permanent resident or foreign national.
If special advocates want to bring witnesses in support of their client's interests, they must obtain the authorization of the judge under subsection 85.2(c), unless I am mistaken.
Mr. Cameron: That is how we understand the system to work.
If I may go back to your first point, the special advocate has the same role as a solicitor has to the client when carrying out duties pursuant to this act. Section 85.1 (3) is there because if they had a solicitor-client relationship, they would have an obligation to disclose to the named person all the information.
Senator Joyal: Everything they know.
Mr. Cameron: That is right. What they are saying is that the special advocate has the same role as a solicitor relative to the client, but special advocates do not have the obligation to disclose the confidential information.
I would be more comfortable if the powers of the special advocate expressly included calling witnesses. I do not see why special advocates must go to a judge to obtain permission to call witnesses.
I have heard this provision defended on the basis that if the special advocate starts calling witnesses, the secret hearing will grow bigger than it should be. However, that rationale does not have any merit for me. I do not see that point. The judge can control that in the same way that a judge controls any proceeding.
Senator Joyal: A lawyer for the other party can also object to a question.
Mr. Cameron: Yes.
Senator Joyal: The judge is in a position to decide if the question can be answered. The witness can be excluded and the question can be asked before the judge before the judge brings back the witness. Many procedures are available to protect the security of a person.
Mr. Cameron: One point that constantly came up in discussions among the special advocates is that these provisions that require us to have leave to speak to the named person, to obtain other documentation and to call evidence all require us to communicate with government counsel to tell them what we will do and to seek their permission. Any of us who are lawyers know that the last thing an advocate wants to do is signal to the other side what they want to do. Special advocates would not have that problem if they simply have the right to do it.
In a recent discussion with special advocates, I raised the possibility of the special advocate going ex parte before the judge to say, I have seen the confidential information, I have a list of questions I want to ask the defendant, but I do not think it is appropriate that government counsel see the questions I will ask the named person. The question arose whether the government may oppose even an attempt to go ex parte before the judge.
Each of these provisions requiring the special advocate to obtain leave from the judge to do their job is problematic in itself. It is then doubly problematic because it results in this dialogue with the government's lawyers about how the special advocate plans to advance the named person's interests.
Senator Joyal: The next aspect of their work as special advocate is the resources they need normally to perform their duties.
Have you had any discussion at this stage of the proceedings about the legal resources and research team you would need as a special advocate, or are you barred from speaking to anyone without the authorization of the judge?
Mr. Cameron: I think it shows, if I can use the Chief Justice's word, the ``absurdity'' of proposed subsection 85.4(2). The government has appointed a person to coordinate affairs for special advocates as part of the minister's fulfilling the responsibility to support them.
One of the first things I will have to request from the judge is leave to talk to that coordinator. I need leave from the judge to talk to the very person appointed to help me in this role.
It is early and we do not know yet what support we will receive, but the Federal Court has been prompt and thorough in the support it is giving. It has put in place new facilities, computers, et cetera.
The task of the minister in supporting special advocates is less logistical. Therefore, it will take more time to unfold and it is too early to judge whether that support will be there. However, it will be a real problem. As lawyers, if we have a research question, we normally go to one of our younger lawyers or an articling student and ask them to research the question for us. We will not be able to do that without leave of the judge.
Senator Joyal: You cannot call another lawyer you may know who has this experience.
Mr. Cameron: Nor can we call another special advocate.
Again, to show the peculiarities of subsection 85.4(2), in some of these cases if not all, two special advocates will be appointed to share the work. This provision would prevent them from talking to each other about the file. That is silly and I am sure practical people will find their way around this provision.
However, I do not think people should be in the position of violating a statute, especially one violating anti- terrorism and security, on the expectation that people will be reasonable and not fault you for a particular communication. In other words, I do not like being put in the position of saying, of course I can tell my secretary I am going to a hearing; of course, I can call the other special advocate, et cetera; I am violating the statute, but who will ever prosecute me?
I do not want to be put in that position in any statute, especially one where I may be accused of compromising national security.
Senator Joyal: I return to the situation in which we find ourselves, which was the second proposal you made in your opening remarks. Either we amend the legislation, which is your preferred alternative, or we do the back and forth with leaves from the judges and await the court's decision.
It is unhealthy for Parliament not to be able to draft legislation that maintains clear objectives about the respect of fundamental human rights. We find ourselves in a situation whereby we must establish a committee to listen to everything and go through the court each time there is a problem over the coming years. You suggested that there are practical issues that normally should be solved within the confines of legislation to avoid being found guilty of a breach of national security.
I am sceptical of that approach, per se. I understand the judges are there to interpret the legislation. However, they are not there to draft the legislation. Now we find ourselves almost to the point where we must give back to the judges or co-share with the judges the responsibility to draft appropriate legislation. I am not sure I want to find myself in that situation.
If we give the court that responsibility, we must think twice before concluding that we should favour that option, given considerations of national security in Canada. I understand there are difficult issues. We could go to the court to seek a declaratory judgment to ask the court what their interpretation would be to prevent a lengthy procedure. The system provides for such an approach.
However, proceeding step-by-step, challenging each decision and waiting for a decision from the court is not a healthy way to go forward for a system that protects human rights. I do not want to caricature your views, however.
We should not ``pull the elastic as much as we can'' each time, to use the French expression, then ask the judge, ``Am I still holding it or not?'' I do not think it is the way the system should work. The system should work on the basis of concepts that are clear, on the objectives of the jurisprudence we have had in terms of protecting someone who is the object of an investigation whereby the end of the investigation can bring that individual's freedom, a term in jail for an unlimited period of time or deportation to another country with certain consequences.
It seems to me we have enough experience in dealing with criminal justice that we should know what we want to do with this legislation.
Mr. Cameron: I agree, senator. I would add another point: When we must constantly go to the judge to ask the judge to fix a problematic provision of legislation, the difficulty in addition to the point you made is that different judges have different ideas in each case.
If the point is one of fundamental fairness, there should not be a different rule for different people only because they have a more or less persuasive lawyer or special advocate, or a judge with a different disposition. If the point is fundamental fairness, it should be in the legislation. I agree with you.
Senator Joyal: Are you involved in the second Charkaoui case in the Supreme Court? If you are, I want to ask you a question.
Mr. Cameron: No, I am not involved. Do you mean the current challenge that Mr. Charkaoui has brought forward?
Senator Joyal: The one whereby there is a challenge on the résumé of the information related to the —
Mr. Cameron: No, I am not involved.
Senator Joyal: Once that decision comes forward, will we have some parameters for you as special advocates to determine the kind of information that will be made available to you?
Mr. Cameron: There are two issues: First, what information is made available to the named person in the public summary; is that public summary thorough enough; and does it disclose all the information it should?
One of the roles of special advocates, as soon as they have seen the confidential information, is to convince the judge that more information should be released to the named person, if that is the special advocate's view.
The second issue is what the special advocate is allowed to see. The views I have expressed are on that second issue. I do not think the Charkaoui decision will have an impact on what the special advocate is able to see.
The Deputy Chair: We are on the second round.
Senator Baker: Chair, I think my questions have been answered.
Senator Joyal: Mr. Cameron, we have terms of reference up to December of this year. Certainly, the chair knows that. If you think of something of importance or interest that should be brought to our attention in the forthcoming months before we make our report, we would be grateful to you if you would come back to the chair of our committee and signal that there is additional information you want to make available to us.
Mr. Cameron: I will keep that in mind.
The Deputy Chair: Mr. Cameron, we may decide to write to you to explore in more depth some areas. We hope you will answer those questions.
Mr. Cameron: I will be pleased to help.
The Deputy Chair: Thank you.
The committee adjourned.