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Proceedings of the Special Senate Committee on

Issue 4 - Evidence - Meeting of February 11, 2008

OTTAWA, Monday, February 11, 2008

The Special Senate Committee on Anti-terrorism, to which was referred Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, met this day at 12 p.m. to give consideration to the bill.

Senator David P. Smith (Chair) in the chair.


The Chair: Honourable senators, we can get under way. I hope we can stay on schedule. At this point, I think we have requests from almost 30 different groups and organizations. Due to the February 23 deadline set by the Supreme Court and because Parliament is not sitting next week, we all want to do what we need to do expediently to meet that deadline. I should note that while Parliament is not sitting next week, that would not prevent this committee from sitting. However, whatever we decide could not be dealt with by the Senate as a whole.

I would like to thank the minister responsible for the bill, Minister Stockwell Day, for coming here today. I think he has some officials to whom we may refer some questions at some point.

Minister, please go ahead with your presentation to the committee.


Stockwell Day, P.C., M.P., Minister of Public Safety: Thank you, Mr. Chair. Rest assured that I appreciate the fact that you understand that the subject with which you are seized is a very serious one. As you know, our government has stated that the safety of our fellow citizens from coast to coast is always a priority. You also know that there is a deadline for making a decision concerning security certificates. You will hear a great deal of testimony here today, and the day will be a long one for you. I thank you for your interest.


I know that you have spent and will be spending a significant period of time on this and that you recognize that there is a Supreme Court deadline for getting this legislation through. In spite of that, I appreciate your taking as in- depth a look as we in the House of Commons have.

I will summarize where we are and how we got here. As you know, we have a very open and generous system in Canada of welcoming people. About 95 million people a year come into the country. Not all of them stay. However, about 260,000 of them will be staying. Our system and our country is built in an open and generous spirit whereby we recognize that the strength of our nation comes from a wide variety of people: for example, our Aboriginal people and those who have come here from all over the world. The vast majority of these people want to build their hopes and their dreams here in Canada because they know what an incredible nation this is. They recognize that we believe in democracy, individual rights, human rights and the rule of law.

In the process of people coming here by the hundreds of thousands a year, there will be occasions when people are deemed to be inadmissible for a variety of reasons. Often people come here with false documentation. People will come here on false pretences. Based on last year's data, about 12,000 people in the course of a year were actually removed from the country for various reasons of inadmissibility.

People who are deemed inadmissible when they arrive here are able to appeal that designation. We have a generous appeal system. However, it can take a number of years for a person to go through it to exhaust all of their appeals. At the end of those appeals, they may be deemed to be admissible or inadmissible.

What do we do when a person is appealing that designation and we, at the same time, know things about them that suggest that they are an extreme security risk to the country? What do we do in a situation where that individual, who may be here for a number of years appealing their designation as inadmissible, is regarded as highly dangerous? Should that person be allowed to have free movement and mobility throughout the country? Most reasonable people would say no, highly-dangerous people should be detained while going through their appeals. If, in the end, they are deemed admissible, then the period of detention is over.

That is the genesis of the notion of security certificates. A process has been in place for over 30 years, introduced in its most substantial form during the federal Liberal government of 1977. It is used very sparingly. Since 1991, there have been 28 cases; since 2001 there have been about six. Remember that 95 million people are coming into the country in a year; 260,000 are applying to stay and, since 2001, there have been about half a dozen cases where the information against people would suggest that they are highly dangerous and need to be detained while they are appealing. That is what has taken place.

The process for that designation requires my signature and the signature of the Minister of Immigration. It then has to go before a Federal Court where the judge will look at the information and make a determination that indeed the person is worthy of being served with a security certificate — in other words, that they should be detained while they are in Canada appealing that decision.

The process has been challenged a number of times over the years, though the federal courts have upheld it. As you know, a year ago in February, the Supreme Court came out with a decision that did not say that the process was unconstitutional. They did say, however, that a few things must be fixed. First, they said that a special advocate for the person being detained must be created. This person must have abilities beyond the detainee's legal counsel and have special powers to look into the situation and intelligence that is gathered on the detained person. Second, the Supreme Court also said that we allow permanents residents who are being detained to have a certain system of appeals in place, but it is not as clear for a foreign national served a security certificate, and we have to fix that particular process. There were also some subsequent, minor amendments that had to be dealt with.

We feel we have addressed these concerns with the amendments that sit before you today.

We have within the legislation a special advocate who has powers to cross-examine people, including our security intelligence agencies; this person has the ability to ask for more documentation, and can be there in a significant way for the protection of the person who is detained, above and beyond what that individual's legal counsel can provide.

We have also adjusted the appeal process of the detention itself. Automatically, there would be a review within 48 hours of the person's being served with a security certificate. They then would have the same extension of time and regular reviews of that particular detention. Therefore, it cannot be said that they would be left in detention indefinitely and not be able to appeal it.

It is important to note that we refer to the detention facilities as three-sided, having three walls, because at any time the person being detained may leave if they return to their country of origin. Obviously, they may have concerns about doing that for reasons of personal safety or other, which must be taken into consideration, but that aspect of the detention of these individuals is unique.

Another reason that information received about persons being detained must be happen in some degree of confidence is that the information in these cases has been gathered by intelligence agencies. To reveal the identities of intelligence officers who have worked on the file or to make public certain other information or other elements pertaining to national security would put at risk the country's security. Therefore, we need to have the special advocate in place to review that information in a minute way and to provide the assurance that these are significance observations made about the individual.


This is a difficult question and it is not exactly like a crime case. The process for someone who has done something that goes against the laws of Canada is different from that for an individual who wants to come to Canada and remain here.


The criminal justice process is different than the immigration process. As I said, 12,000 people per year are removed from the country. They have a different process of appeal than a criminal process. We are not trying to prove that the person should be jailed and go through a punitive period or a period of rehabilitation as is the case in the criminal justice system. There are two very different systems in Canada to handle this, as there are in most democratic countries.

Thank you for dealing with this matter. If the bill is not proclaimed into law by February 23, we are advised that the security certificate system we have currently will be quashed. We will have no immediate means of detaining people who are designated high risk. These would be people with terrorist connections or significant criminal organizations.

Thank you very much for your interest, and I wish you the best not just for the rest of your time with me but also for the rest of the time you are looking at this bill.

The Chair: Thank you very much, minister. I will ask colleagues to limit inquiries to two questions per round. Let us try to be brief, succinct and to the point.

Senator Jaffer: I know it is not part of this bill, but in our report was the definition of ``terrorist activity,'' and I urge you to look at that in the near future.

My question pertains to special advocates. I understand that the person being detained can choose a special advocate from the list. Is that correct?

Mr. Day: That is correct.

Senator Jaffer: The person then meets that special advocate prior to the advocate seeing the evidence. Is that correct?

Mr. Day: That is correct also.

Senator Jaffer: After the special advocate has spoken to the detainee, the special advocate is allowed to see whatever material is provided to him. Is that correct?

Mr. Day: That is correct.

Senator Jaffer: The special advocate does not see the whole file.

Mr. Day: The special advocate has access to the file after having spoken to the individual. Generally speaking, the advocate would spend all the time needed with the individual being detained to get the full story. The special advocate is then allowed to see all of the confidential and national security information. To maintain that confidentiality and security, the discussion from that point forward is somewhat limited. However, if the special advocate feels that it is necessary to discuss something with the person being detained, he or she can make application to the judge, who has the authority to grant the request.

Senator Jaffer: My understanding is that the special advocate does not then go back to the detainee.

Mr. Day: In most cases, that would be correct.

Senator Jaffer: I am not talking about discussing secret information. We all understand that. However, the right to go back to the person is limited.

Mr. Day: Yes, that is right.

Senator Jaffer: You are also in charge of the Canadian Security Intelligence Service, CSIS. We already have a good Security Intelligence Review Committee model where the legal counsel in a SIRC application reviews the whole file. I understand there is no need to go to the judge to say, ``I want to see the person named again.'' There is a continuous relationship with the person.

Leaving the issue of secret information aside, in that example there is a continuous relationship. Why would we not look at the SIRC model, which is also under your area of responsibility, in this situation?

Mr. Day: That was considered. However, a number of questions arose. First, the SIRC review is designated to review the actions of CSIS itself and to make observations on whether CSIS — in all their operations except security certificates — is complying with the law in their operations.

We wanted this to be a process clear of any possibility of a conflict of interest. I am one of the people who sign the security certificate requesting that a person be detained. The SIRC counsel is the one doing the inquest and investigation. It could be seen as somewhat circular in terms of the work they are doing. I do not think it would be a conflict of interest, but it could be seen as a conflict of interest. The independent approach we are taking eases that concern and shows this to be an independent process. The relationship between the SIRC and me is not involved. Rather, this will be before the judge dealing with the special advocate and the other individuals involved. Remember that the special advocate can cross-examine and call for examination the CSIS officers and others involved. This process gives the ability to probe further into the question.

The Chair: This is not a question, but I will put it on the record. I believe the point that Senator Jaffer was making in her comment was that our 140-page report, which was adopted unanimously and contained 40 recommendations, recommended that the definition of ``terrorist activity'' be amended to delete that the activity was being committed for political, religious or ideological purpose. In other words, if it is a terrorist activity, who cares what the purpose is? Many feel it encourages racial profiling.

Senator Baker: A decision of the Ontario Superior Court since we made that recommendation has struck down that section of the definition. The effort of the Attorney General to appeal to the Supreme Court of Canada has been rejected by the Supreme Court of Canada. That is just a side note.

My first of two questions to you is this: The decision of the Supreme Court of Canada was brought down on February 23, 2007. It took eight months for this bill to be introduced in the House of Commons, and then the House of Commons took three and a half months. Now the chamber of sober second thought on the bill is left with a couple of weeks to make its determination in its tradition of examining the law thoroughly before passing it.

Was there any particular reason for this? Did the reason for the eight-month delay rest in the Department of Justice in crafting a solution to what the Supreme Court of Canada ordered, or was there hesitation on the part of the government as to whether you were going to renew the procedure?

Mr. Day: First, I would say one person's delay is another person's period of introspection. You would be familiar with that in the work that you do.

There was no delay as such. A delay, in my view, would be a deliberate attempt to slow things down. There was certainly a lot of caution exercised by Department of Justice officials and lawyers, recognizing that we want this to be constitutionally sound. I believed that the chances were very high, no matter how this was worded, that it would be challenged — and it may well be.

As you can imagine, with an item of this intricacy, it took some time, especially on the Department of Justice side, to work through the processes that would respect what the Supreme Court said and that would withstand a challenge and meet the demands of individuals who are faced with this particular situation. When we were given one year, we actually thought — and I think you may agree — that with elements of constitutionality like this, one year is not much time. That is why people got to work on it right away.

Then, of course, there was Parliament itself and the parliamentary committees. In the work that they do, parliamentary committees are their own servant. I do not tell them what to do. I ask them and I may encourage them, but I do not tell them what to do. Those were a number of reasons for the delay.

Then there were amendments. There is a significant amendment, as you are aware, related to the question of torture. That also took time to walk through and look at and refer back.

Overall, given the complexities of this particular issue, I think that this is not bad timing. I know our citizens on the street might say, ``one year?'' All we have to do is say the word ``committee,'' and they instantly understand. I do not say that to be pejorative; it does show that the process takes a long time. It may look like the glacier-like speed of government, but, in fact, I think this has moved along, all things considered, in a fairly reasonable period of time.

Senator Baker: You say that you do not give orders to the House of Commons and their committee system to finish things with deadlines. However, the government certainly does not hesitate when it comes to the Senate, as we have seen recently.

My second question relates to Senator Jaffer's point. The procedures suggested by the Chief Justice of the Supreme Court of Canada in striking down the original law started with an analysis of what Senator Jaffer mentioned — that is, the SIRC process, in which, before the ministers could sign anything, the matter goes to a procedure that the Supreme Court of Canada likened to a mini-trial, at which time all of the information is cross-examined in a closed-door setting. Then the procedure starts after that, as far as the ministers and the accused are concerned.

Is there any reason that the Department of Justice or the Government of Canada did not contemplate the SIRC process as set out by the Supreme Court of Canada in some detail? The second in-Canada solution concerns the Canada Evidence Act as it relates to the anti-terrorism legislation. We already have in law, in the Criminal Code, various procedures for sealed packets and the opening of sealed packets and the blacking out of persons' names who should not be disclosed for information that is of national security.

Is there any reason why the government decided to go with this particular package, which has been criticized adversely, roundly, by experts in our universities and the legal profession as warranting another challenge to the Supreme Court of Canada?

Mr. Day: You have addressed a number of things. First, regarding your comment about orders to the Senate from the House of Commons, I think we recognize the distinction there. As I said, one person's delay might be another person's introspection. One person's order might be another person's encouragement. We ask you not to be overly sensitive to hearty encouragement from the House of Commons, especially related to the crime bill that is before you.

Senator Baker: It is hardly hearty.

Mr. Day: I can assure you it is with a full heart.

On the issue of the SIRC process, I largely addressed that with Senator Jaffer. We looked in depth at the plausibility of that and decided as we did for the reasons I stated to Senator Jaffer.

You mentioned the Canada Evidence Act and the Criminal Code. It is important to keep in mind — and I touched on this briefly in my opening remarks — that these are not criminal proceedings; they are deliberately not adjudicated as such. If we were to apply criminal proceedings to the over 12,000 people who were deemed to be inadmissible last year, there would not be the courtroom space — nor, would I suggest, the prosecutors or the lawyers — to do that.

All democratic countries have the question of admissibility dealt with from a judicial point of view in a very different process than the Criminal Code. Whereas we can learn things or draw on things from, for example, the Canada Evidence Act, we wanted it to be very clear that this was not coming under that particular area of jurisprudence. The Immigration and Refugee Protection Act is very distinct from a criminal process; we want to keep it as such.

On the question of criticism of this bill, just as there are critics, there are those who have looked at what we have done and have said that this fixes it. This allows for proper constitutionality; it reflects what the Supreme Court is asking for. We have taken most seriously what the Supreme Court has advised.

The fact that the overall process was not deemed to be unconstitutional but that there were some areas that had to be fixed or the whole process could be struck down was significant and worth keeping in mind. The Supreme Court did not rule on the overall process; they recognized the balance of liberty and security that we have in a free and democratic society. Every time you lean to the side of security, you put pressure on the side of liberty. We understand that equation. It must be done carefully.

I believe you referenced academics and others who have criticized the bill. There are also academics and others who have said that this is a good and respectful way of dealing with the matter and that the problem appears to be solved. That, senator, as you know, will be tested in a final way only when and if this comes up for a challenge. We do think it will be challenged. That is why we tried to meet not only the spirit but also the letter of the Supreme Court of Canada decision.

The Chair: Senator Baker, I will put you down for a second round because we are at the halfway point and we are trying to stick with two questions per round.

Senator Joyal: I would like to stick with the fundamental issue between the SIRC model and the U.K. model, which is expressed in the status of the special advocate. In your opinion, in which aspect does Bill C-3 respond to the criticism that the House of Lords expressed on the status of the special advocate in its decision of December 2004?

My second question to you is this: How is the main recommendation of the report of the British House of Commons in April 2005, which was referred to in the Supreme Court of Canada decision of last February, addressed in Bill C-3?

Mr. Day: We looked at what had happened in the U.K. I am not trying to pass judgment on another country's legislation, but they had some deficiencies, and those have been pointed out. What we have done here regarding the special advocate gives our model strength over theirs. For instance, in the U.K., the appointment is made by the Attorney General. Some could say that that has political overtones. I am not saying it does, but I am saying some could say that.

With our particular process, a list is drawn up of credible individuals who could meet the test of having the necessary skills and understanding. That list then is shown to the individual being detained, and that person chooses an advocate from the list. I think that is highly favourable and gives much more weight to the person being detained.

The fact that in the Canadian system the special advocate can cross-examine as vigorously as the legislation allows is also a plus over the U.K. situation. As well, there is an interesting proposed section that has been added, proposed section 85.2(c), I believe, which is basically a catch-all clause. It says that if anything comes up that was not anticipated, the special advocate can actually make a case for that to the judge and say: ``Even though this particular aspect was not anticipated, I would like to proceed this way.'' That gives much more freedom to the special advocate.

We looked at a number of the deficiencies that had been observed in the U.K. model and I believe ours is superior for a number of reasons, with all due respect to our friends in the U.K.

Senator Joyal: The Supreme Court pointed out that the House of Commons April 2005 special report on the issue of a special advocate mentioned the following important disadvantages. I quote from the decision of the court at paragraph 83:

(1) once they have seen the confidential material, they cannot, subject to narrow exceptions, take instructions from the appellant or the appellant's counsel; (2) they lack the resources of an ordinary legal team, for the purpose of conducting in secret a full defence; and (3) they have no power to call witnesses.

How does Bill C-3 address those three main weaknesses identified in the British House of Commons 2005 report?

Mr. Day: The first weakness I have already addressed. If the special advocate deems something is deficient and he has to go back to the individual, he is able do that; he can make the appeal. In the 2005 report, they used some wording about narrow limitations. That has been broadened by what we have put in the bill, the ability to make that appeal and to go back.

The resource question has also been addressed. That is another area where our bill is superior to the U.K. model, which we feel is very restrictive. If the person wanted to do the cross-examination, all of that takes time to prepare and research. We have addressed that situation in the bill, allowing for resources to be made available to the special advocate to do that particular job. Would those resources be unlimited? Obviously not, but we want this not just to be seen; we want it in practicality to be a fair process. It is one thing to tell the special advocates that they can cross- examine and can ask for more evidence, but if you do not give them the resources to do that, it is a hollow allowance that has been made. That has been addressed.

You are quite right. The limitations in 2005 in Canada and now the limitations of the U.K. model on the power to call witnesses we believe is another deficiency. That is why we have given the power to the special advocates to cross- examine and to drill down for more information if they feel it is necessary.

Senator Joyal: However, the special examiners cannot call witnesses per se?

Mr. Day: They can ask for people to come forward to testify who are relevant to the case. It is not limited just to what they have seen in the particular material. They are allowed to bring people forward, subject them to rules of evidence and ask questions that they feel are needed in the pursuit of their case on behalf of the detained individual.

Senator Joyal: To return to the first point, why did you exclude per se the capacity of the special advocate to come back to the person with the objective, the certificate, once he has seen the proof? Do you not trust the special advocate?

Mr. Day: It is not a matter of trust; it is a matter of being seen to protect national security as well as to actually protect national security. That special advocate possibly will see information, and we need to keep this in mind. These certificates are rare, but it is a matter of public record — and I will not name individuals — for what reasons a number of these people have been detained, for example an individual coming in with a falsified Saudi Arabian passport; individuals who admit to strong affiliations with terrorist networks. When that is checked out, it is corroborated. People in an al Qaeda training camps learn the very dark art of how to massacre innocent people, for instance. That is what al Qaeda is all about: advancing their cause through the death and destruction of innocent people. These are not individuals who have been found guilty of jaywalking in other jurisdictions. These are individuals with very significant allegations against them.

After a special advocate first gets to talk to a detainee, he or she then sees all the information — for instance, possibly the names of Canadian intelligence officers who have gleaned the information; they may have information, let us say, that would show how an al Qaeda information system was breached, so that names could be found of individuals within that organization. When we are dealing with allies, such as New Zealand, Australia, and the United Kingdom, who also are working with us to do all they can to ensure that al Qaeda operatives do not bring death and destruction to Canada, we have to be careful about what information is out there and how it was acquired, remembering that this is not a criminal proceeding. It is not subject to the same rules. There is the possibility that after having seen such information, if the special advocate goes back to the detained individual, he might, not with any malice of intent but in the course of discussion with the detainee, unwittingly divulge information he has seen. If that happened, you would have an individual being detained, let us say, because of serious terrorist networks, and now that person has some potentially very dangerous information that at some point they could pass on to other individuals, which would undermine our ability to run a proper, law-abiding security operation.

That is why contact has to be limited after the special advocate has seen that information. Because of the credible people who would be on that list, given who they are and their bona fides, I do not think they would intentionally go back and give information, but the possibility of it coming out is likely. That is why we still give them the opportunity to go to the judge and say, ``I believe I have a case here for going back and talking to that individual,'' and the judge may grant that application.


Senator Nolin: I listened to your testimony and I think that we are not honouring the Supreme Court decision. The court has heard the argument of your crown attorneys stating that the state — the executive power — must protect national security.

The Supreme Court reminded us that the rights protected under the Charter of Rights and Freedoms were so important that the exercise of your power should not jeopardize the existence and respect of those rights.

We must thank the Supreme Court and the Chief Justice for this exhaustive analysis of the junction between your executive responsibility to protect national security and the respect you must show in the exercise of that power for the rights of any individual, be they permanent residents or foreigners.

Am I to understand from your comments and responses to some questions that all the evidence available to the executive power will be transmitted to the court and the special advocate? Did I understand your statement correctly? When I say ``all the evidence'' that is anything that is available.

Mr. Day: First of all, I agree with your comment that it is up to the Supreme Court to decide to protect our human rights and our fundamental rights. That is why we amended the bill.

However, I will check with our legal advisers regarding the question of information per se, but that is the intent of our amendment, namely to allow the special advocate to have all the necessary information to protect the person in detention.

Senator Nolin: I will let you check with your legal advisers.

Mr. Day: After verification, that is the case, as I thought. When the special advocate consults all the information, it is possible that something may not be part of that information, but it would only be peripheral. It is not with the intent of hiding anything. That is why we continue to promote transparency; if the advocate wants to see something, he can see it.

Senator Nolin: I am asking you these questions because they are at the heart of the argument raised by Chief Justice McLaughlin.

Mr. Day: Exactly.

Senator Nolin: Over the past 400 years, there has been a principle established in common law which states that a person cannot be judged without being provided with the facts against them, so that they can argue on the law.

The Chief Justice referred to a case dating back to 1610. I do think she did her homework.

You so use the information necessary for the special advocate to do his job. But who will decide what is necessary for the special advocate? The special advocate, the judge or the executive?

Mr. Day: When the special advocate consults the information, if he decides that something is missing, he can ask whether there is any missing information for which allegations could be made against the persons in detention. He has to have the information.

You referred to a decision rendered 400 years ago. But 800 years ago, the Magna Carta was created. For example, there is the expression ``habeas corpus.'' That is necessary in a detention situation when charges are laid after 24 hours, but again this is for criminal cases.

If we take for example the system in the United Kingdom, where they can detain someone without appeal for 48 days and now it has gone up to a period of 72 days, that is not the case in Canada. We have more respect for the rights of individuals. It is also important to remember that this law cannot be applied to Canadian citizens; it is only applicable to foreigners.

Senator Nolin: From your answers, I understand that all the information will be available, both to the court and to the special advocate.

Mr. Day: Yes, that is correct.


Senator Jaffer: I have one short clarification because I misunderstood a comment. Minister Day, did you say that all of the information would be shown to the special advocate? I understood that only certain information would be shown to the special advocate.

Mr. Day: That is my understanding. I am taking time to clarify this carefully. My understanding is that all of the information, everything pertinent to that certificate, will be shown to the special advocate. If the special advocate thinks or perceives there is information not there, he or she can ask for it. It may be the case that something peripheral was not included, but that would never be the intent.

Senator Day: On a supplementary, is that to be exercised under proposed section 85.2(c), which you referred to earlier, which states: ``exercise, with the judge's authorization, any other powers?''

Mr. Day: That is a little different. The part I referenced at subparagraph (c), for lack of a better term, is a catch-all phrase. We do not want a situation to arise whereby the legislation does not contemplate a question that has come forward and then the request of the person being detained is not addressed because someone on the other side, let us say on the government side, can say that it is nowhere in the legislation, so they will not deal with it. That subparagraph is to add for the unanticipated, which, by very definition, we do not know. Something cannot be dismissed simply because it was not anticipated.

Senator Day: I was looking for the specific proposed section, because proposed section 85.4 refers to ``all information and other evidence that is provided to the judge,'' but there might be something more than that that if you were the special advocate you would feel should be provided to the judge.

Mr. Day: The special advocate could ask for that.

Senator Day: Where is that provision in the bill?

Mr. Day: Do you want the exact section?

Senator Day: If you could give that to us later, it would be helpful.

Proposed section 85(3) states that ``The Minister of Justice shall ensure that special advocates are provided with adequate administrative support and resources.'' Have you a defined list of adequate administrative support and resources? Does it include the salary or the fee that these individuals will be paid?

Mr. Day: It is left as ``adequate.'' Both the spirit and the intent are to ensure that the special advocate has everything at her disposal that she would require in terms of cross-examination, testing the evidence, et cetera. A dollar-amount ceiling was not placed on it. We think some degree of reason is applied to these situations; there is some precedent for this. That is why ``adequate'' is meant to say in the very definition of the word, ``What do you need? We want to ensure you have those resources.''

The clear intent of the law here is to mirror the Supreme Court concern, as Senator Nolin indicated, that there should be no question that the person being detained was able to have all of the possibilities before them in terms of questions being asked and the information being assessed and scrutinized at the highest level and with the highest degree of scrutiny. That is why there is no limit there, and adequate resources will be provided.

Senator Day: I assume then that that would include the fee the special advocate should be paid.

Mr. Day: Yes, the fee would be included.

Senator Day: My second question relates to the appointment of the special advocate. The normal process under proposed section 83 provides that ``the judge shall appoint a person from the list,'' and it refers to the list of people that you have already checked and that you know can do the job for you.

However, there is a special provision under proposed section 83(1.2) that outlines a process to follow if the permanent resident or foreign national requests that a particular person be appointed as special advocate. In that case, the judge will check to make sure that the person is adequate. That suggests that the person may not necessarily be on the list of pre-screened individuals.

I heard you comment earlier that the individual being detained can appoint someone, but he or she has to be from the list. Did you misspeak then, or is that your intention, and have you achieved that with these two sections?

Mr. Day: No, the person being requested could be added to the list. It does not mean they would be, because the list itself will be developed from eminently qualified individuals, and we do not want to see a situation where the person being detained could bring forward just anybody. Whatever qualifications the people on the list must have would have to be mirrored in the individual suggested by the detainee. In fact, the list is meant to include, if they are accepted, other additions. However, those additional people still have to meet the same criteria.

Senator Andreychuk: This committee has struggled with this issue for some time. Some have struggled with it since Senator Fairbairn chaired the first pre-study on Bill C-36. We have had many opportunities to discuss it. The dilemma has always been to reconcile the balance between the right of security for citizens and the rights of persons who may be detained. As you pointed out, they are not Canadian citizens but people within all of the international declarations that we respect. The Universal Declaration of Human Rights certainly talks about security but also talks about other rights. The Vienna Declaration and Programme of Action indicates that all rights are equal and must be taken into account.

This committee has struggled with the processes. The idea of the special advocate did not come from me but came from other members of this committee who very much took to that model. We also looked at the Security Intelligence Review Committee model in our report.

Based on the countries we studied and given our political, criminal and security systems, are you able to assess any other model that could have been chosen? Could a model other than the SIRC or the special advocates model mentioned in our report have been considered? Do you feel that the special advocates model is the best approach to reconciling this difference?

As editorials have pointed out, what is being proposed is certainly fairer than what existed before. It remains to be tested, and I am sure we are not through with this dialogue. However, are you convinced that the special advocates approach to balancing and reconciling these rights is the appropriate one?

Mr. Day: I am, senator. I appreciate the question, and I am confident and convinced that we have the best approach possible.

We had the advantage of being able to look at some other jurisdictions that have had to make similar adjustments to their legislation. Certainly we had the advantage of the U.K. model, but we also looked beyond that. As you know, we have a close relationship with the Five Eyes — New Zealand, Australia, the United States, ourselves and Great Britain. When we talk about New Zealand, Australia and Great Britain, we are able to look at it in the context of a common parliamentary history and a fairly common development of jurisprudence. One of the advantages of time is being able to look at the shortcomings of other people's legislation. We have taken that into account.

I believe the analysis you indicated is correct: This is fairer than it was before. I believe it will withstand scrutiny at the Supreme Court level. However, I also believe it will not ultimately satisfy everyone.

As you know, there is an organization whose motto is ``nobody is illegal.'' Frankly I have a profound disagreement with that notion. There are some people who are illegal. Every organization has the right to make their own claims and speak freely, and I appreciate that they are robust organizations, but some people should be declared illegal. When that declaration happens, we must have a process that ensures that the person who has been declared inadmissible still has a robust and vigorous channel of having that determined.

We should never get to the place where someone could simply be declared inadmissible with no chance at all to dispute it. I believe it is also a matter of fact and record, stated by people within and outside of Canada, that we do have the most generous appeal system. The appeals process is generous in spirit, in law and in time allotted in order to make sure that we can never be accused of coming to a hasty conclusion about an individual.

That is why I have a high degree of confidence in what we have developed. Some of the input from this committee has been applied to that. The input from other forums and jurisdictions has also been applied. I believe we can stand on this legislation not only with confidence but with a degree of justifiable civic pride that we have developed a system that allows not only ample but adequate and generous opportunities for a person being declared inadmissible to challenge the certificate that is being brought before them. I have a high degree of confidence in that. I will not hesitate to share this with colleagues from other jurisdictions, even as they are watching us develop this and as they have shared some of their own shortcomings with us.

Senator Andreychuk: On page 113 in the English version of our report, we recommended:

That Canada show leadership in engaging the United Nations on the issue of how to properly deal with alleged or known terrorists who, regardless of what country they are in or to which they may be removed, pose a threat to the international community as a whole.

I do not want to speak for my colleagues, but I feel that the security certificate issue is a dilemma. You must consider that we rely on evidence from around the world. Some of our international colleagues have strengths in intelligence gathering while others have very questionable abilities that include torture, as we know. The dilemma is about returning someone to torture.

One conclusion I come to and I think our report comes to is that we will have this struggle in Canada. That is what Bill C-3 is about: the balance and the reconciliation. However, there have to be international conventions and international understandings about intelligence gathering. There has to be some way to screen all of this information better and share it better so that it is not always only a national responsibility but also an international responsibility. A terrorist returned or a terrorist within Canada is still a threat to this country. Also, much more work must be done on the reconciliation between countries. I do not know, in this year of reflection, whether you have gotten to Recommendation 36 in our report, but I would sincerely suggest that that is part of the answer in dealing fairly and adequately with this issue.

Mr. Day: I would suggest, senator, that you can take pride in that particular area of your report. I would be happy to share what we have done in Canada at the United Nations, because I think we do have a process that is probably the most liberal, in the classical sense of that word, in terms of respecting rights.

The United Nations has ordered countries, as far as it can, to make sure that they have systems in place to protect themselves from terrorism and to limit its use and application. The UN came up with a list of organizations that they say should be banned in countries and whose assets we should be able to seize. There are about 36 organizations from that list in Canada. These are strong words from the UN, to tell countries that there are organizations that should not be allowed to raise funds in your country because they will direct those funds to the death and destruction of innocent people.

Some of the messages are starting to get through to the public about how dangerous these organizations are. We saw recent accounts of terrorist organizations sending mentally challenged young women to their death strapped with suicide explosives. This gives us insight into how far they will go. The UN has recognized this and said that there are organizations so dangerous that you should not allow them to exist in your countries and individuals so dangerous that you should not allow them to roam freely in your countries.

There is anguish for those of us who love the freedom that comes with individual and human rights. We have to take steps to make sure that there is balance. That reconciliation is not an easy thing to do.

I look forward to sharing this type of thing with my colleagues at the annual meeting of G8 ministers of public security. At our recent meeting in Munich, we discussed the question of the possibility of someone being returned to torture. We are presently working with our respective foreign affairs departments to develop assurances in regard to torture. The Supreme Court has suggested that there are countries where maybe the evidence regarding torture is not really clear, but there should be a caution. Even though a certain country may not be on a list of countries known for sure to practice torture, we want protocols in place so that we can go to that country and say, ``We do not want you just saying that you do not torture, we want to see how you can say that and we want to be able to look into how you can say that.''

We are also reviewing this with our Commonwealth partners. We take seriously the possibility of return to torture. We also take guidance from the UN that there are organizations and individuals whose rights we must restrict and whom we cannot allow to have mobility in our country.

Senator Fairbairn: I am happy to see you here talking about the special advocate because this has come up in this committee more than once when you have been here before us.

What qualifications are being sought in order ensure that the special advocates are able to do the job required, and have steps been taken to ensure their independence from government in their past work?

Mr. Day: In broad terms, they must demonstrate experience and understanding of the workings of immigration law and cases similar to this. We sincerely want to make sure that the best qualified people will be available to speak to the interest of the person being detained and are at arm's length from government. We want to provide a high level of assurance that these people will not be politically appointed. That is not the case in the U.K., where the Attorney General makes the appointment.

I would also suggest that their actions will be carefully watched by everybody in the process, especially those who are concerned about the interests of the person being detained. I think we have a respectful process here.


Senator Nolin: In her decision, Chief Justice McLachlin refers in several paragraphs to intelligence oversight committees. Quite clearly, when one reads the decision, one gets the impression that she sees this as a model, although imperfect, which seeks to accommodate what the government attempted to do with Bill C-3.

The ability of the special advocate to communicate with the person named on the certificate is at the heart of the problem. I have trouble reconciling the qualities the Chief Justice found in the mechanisms that already exist in Canada with what you are proposing here. You said earlier that there is an appearance of conflict of interest that we have to eliminate. I agree, but the Supreme Court itself is dictating the way to go. Why not follow it?

Mr. Day: You mean a conflict regarding the choice of the special advocate?


Senator Nolin: No, the Supreme Court is making a great case about the SIRC model. We already have that model in Canada on the books. It was done like that for years and then changed. Why do you not return to that model? That is basically what Chief Justice McLachlin is saying in her decision.

Regarding Bill C-3, many people from whom we will likely hear today are concerned about the capacity of the person named in the certificate to have access to a full defence with full understanding of the evidence against them. That is what is at the heart of that problem. Chief Justice McLachlin is asking why you are not following the SIRC model.


Mr. Day: Chief Justice McLachlin did not indicate that the security model was the only one.

Senator Nolin: You and I can both read the Supreme Court decisions.

Mr. Day: She used an example to explain the principles needed to build the capacity to protect individual rights. That is why some people thought that it would be better to have a process outside of SIRC and independent from the government as well. That is why, in our opinion, the changes in the bill give an opportunity to have a transparent process, except for information affecting national security.

One can see an individual calling upon others to provide testimony.

In our opinion, this is a clear process that is an improvement over the other one. We did take into account the concerns of the Supreme Court. There will always be people who agree with us and others who do not. Nowhere in the world have I seen a system that is more effective and that takes into account the rights and concerns of individuals so strongly. I have not seen a better system than the one we are proposing with the amendments in the bill.


Senator Baker: Mr. Minister, what you are talking about — I am listening to you very carefully — is the degree of procedural fairness, the degree of adequate disclosure so that a person will know the case against them.

An ordinary Canadian listening to this debate would say that surely, in the name of fairness, the person who has a case built against them has a right to know that case in order to respond to those particulars. The person involved would be the person who would know the circumstances — not someone far removed or a third person.

How do you respond to that? Ordinary Canadians would expect us to be fair to everyone. You cannot just have a whole bunch of evidence against someone and not give them the particularization that they would need in order to rebut some of those arguments, because maybe they can rebut some of these arguments. How do you answer a Canadian who says, ``Above all else, let us be fair about this?'' As Chief Justice McLachlin said in her decision, let us have a fair process.

Mr. Day: It is interesting, senator, that we talk about ``ordinary Canadians.'' As elected people, we often find ourselves saying, ``Canadians want'' or ``Canadians say.'' We say that with all good intentions, but in fact there is no monolithic Canadian view on any subject. There are times when a majority of Canadians are for something and a minority are against it.

As I travel from coast to coast and as I regularly — even between elections — knock on doors in my constituency, I have yet to run into an ``ordinary Canadian'' who, if he or she raises this issue, disagrees with protecting our intelligence operations in the name of national security. Once I explain the process, that there are certain elements of our national security that should be protected to protect our intelligence operations, which is the same in every jurisdiction in the world, other than a very narrow group, I have yet to hear any ``ordinary Canadian'' say, ``No way. That person who is alleged to be a terrorist should get to see every little bit of information, even the stuff to do with national security.'' I have never run into that.

Most Canadians are of the view that there are certain things to protect our country that a person accused of being a terrorist should not be able to see. Remember, these are not criminal proceedings; these are proceedings relating to somebody's admissibility into the country.

Senator Joyal: Mr. Minister, as you know, there are presently many cases in the court dealing with security certificates: the Supreme Court is deliberating on one currently; others are at the appeal level; and still others might be contemplated under this bill.

Would it not be advisable for Parliament to review the operation of the system you propose today, and should Parliament not do that review after thee years of operation so that it is possible to adapt the system and maybe correct what the courts might advise needs correcting?

We know that the courts will come forward with decisions in the near future. We are breaking ground here. While I do not think that your intention is questionable, on the other hand, we know that many systems have their weaknesses. Would it not be advisable for Parliament to review the proposed system after three years?

Mr. Day: I believe, senator, that a review will happen, possibly on an annual basis or maybe every two or three years. In some cases, there is sunset legislation in reply to every five years. I believe these cases are so important because they deal with the basic elements of a person's liberty. Therefore, committees of Parliament should have the opportunity at any time to review. I believe that is what will happen. I think there will be a review at the Supreme Court.

As we look at the application of these measures, there will be ample opportunity for people to request that review. Frankly, I think it will happen even more often than every three years.

The Chair: Thank you. I think we have gone about 18 minutes over. I thank you for your time.

I know Senator Day is wondering if your colleagues have identified the section that they were to identify for him.

Senator Day: It is the section that gives the special advocate the right to access to information other than that which was disclosed to him.

The Chair: Senator Day, you go back and huddle with them about that.

Mr. Day: We will get that information to you.

The Chair: I would like to introduce the next panel. We have been swamped with requests to make deputations. You are all aware of the time constraints. We are doing the best we can given those constraints. We are putting groups together in panels. Sometime the groups do not have any relationship to each other.

Next, representing the Canadian Bar Association, we have Lorne Waldman, a well-known practitioner in these areas of the law, and Tamra Thomson, Director of Legislation and Law Reform. As individuals we have Gordon Cameron and Craig Forcese from the University of Ottawa.

Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association: Mr. Chair and honourable senators, thank you for including the Canadian Bar Association amongst the witnesses appearing on this very important bill. I know that you have a very long day of hearings in front of you.

The Canadian Bar Association is extremely interested in this issue. As with all bills that appear before this committee and other parliamentary committees, we bring to this issue the perspective of the rule of law and ensuring that the administration of justice and the law are dealt with properly and fairly.

Our interest in this issue stems most recently from our interventions before the Supreme Court in the very case that gave rise to Bill C-3. Indeed, Mr. Waldman, who is a member of our citizenship and immigration law section, acted as council for the Canadian Bar Association in that case.

You have our written submission in front of you, which outlines a number of concerns that we have with Bill C-3. We acknowledge that a number of changes have been made to the bill since it was originally introduced. While the written submission itself remains the same as for the bill introduced, Mr. Waldman will address some of the changes that have been made and some of the substantive issues in the bill.

Lorne Waldman, Canadian Bar Association: It is a pleasure to be here before this committee. We start off first with the recognition that the process engaged in here is, from the point of view of counsel who has represented people on security certificates, impossible. You represent a client whom you are told is a member of this or that group, and you do not see any of the evidence. You are then called upon to challenge a certificate that has been issued without knowing the case or without having access to any of the evidence at all. Anyone who has worked on one of these cases realizes that it is impossible.

This gives rise to a sense that justice is not done. That is it why the case went to the Supreme Court and that is why the Supreme Court of Canada in Charkaoui acknowledged that the system that has existed up until now was not satisfactory because it made the process impossible. There was no mechanism for the named person to challenge the evidence against him or her.

The Supreme Court concluded that there were other alternatives that were better and that, while they might allow for the protection of national security information, they would also allow for fuller participation.

As a result of that decision, Professor Forcese and I got some funding and undertook a study. We went to the United Kingdom and met with special advocates there. We also spoke to the special advocates in New Zealand. We wrote a report called Seeking Justice in an Unfair Process.

The conclusion we came to was that, although the task of any person who would go into the secret hearing and try to undermine the government's case without having direct contact with the person being detained was very difficult, at least there were some procedures that were preferable over others. We felt that the English system was not the best choice and that Canada had in fact come up with the best choice, which was the Security Intelligence Review Committee. We urged the government to accept that process. We urged the parliamentary committee to accept that process. Unfortunately, we are here today because neither the government nor the parliamentary committee heard us.

Professor Forcese will talk about the substantives, but if the bill is not changed I can tell you that there will be another constitutional challenge for sure. I can tell you that any special advocate worth his salt would demand to have ongoing contact, and if that were denied, would demand full disclosure. Contrary to what I heard the minister say, the special advocate in this bill does not have the right to have full access to the file. He can ask the judge to order it. If those concerns are not met, there will be another constitutional challenge.

I am not sure, in the wisdom of the committee and given all the political considerations, whether there will be amendments taking into account these concerns. Either way, I would urge this committee to adopt some kind of commitment to review the legislation on its own, to put into the legislation a mandatory review or, if not, to adopt a resolution that in one year the committee will revisit this issue. By then there will be special advocates who have had experience and who should come before the committee and tell you how the system is working.

Craig Forcese, University of Ottawa, as an individual: There are three issues that we have underscored in our presentation. Hopefully, the material that we circulated last week is before you. Those three concerns I heard voiced in the comments and questions made when Minister Day was before you.

The first is the issue of the special advocates' full access to information. On this issue, the SIRC model we thought was quite robust, because SIRC has a statutory authority to see all information in the possession of the Canadian Security Intelligence Service, CSIS, except cabinet confidences. The issue of full disclosure in other systems, such as the special advocate system in the United Kingdom, is less satisfactory. When we spoke to special advocates, they recounted to us circumstances in which, for example, notwithstanding the prevailing view that they are supposed to see everything, special advocate in case A was given a set of materials; a few weeks later, in case B, more material was disclosed that was actually material to case A and exculpatory in case A but had never been disclosed. But for the fact that it was the same special advocate in both cases, this would never have come to light.

There was a discussion that maybe there is information on the periphery that will not be disclosed in our own system — Minister Mr. Day made comments to that effect — but one can go to the judge and ask that that information be disclosed. The concern is that the special advocate may not know this information exists. The special advocate is then arguing a hypothetical in front of a judge saying, ``I am not sure there is more information but I would like you to authorize a fishing expedition to ascertain whether or not there is more information.'' It seems unlikely that a judge will authorize that.

We are proposing that there be a capacity for the special advocate to request that SIRC review the disclosure and certify that there has been full disclosure. Thus, there would be an arm's length third-party who can rifle through those government files and determine whether there has been full disclosure. That is a way of integrating the SIRC model into the system. Some language in our document proposes that.

The second issue is the perennial concern about continued contact between the special advocate and the interested party once the special advocate has seen the secret information. This has been one of the more notorious aspects of the U.K. system, where continued contact is more or less non-existent. It can occur in the United Kingdom, but it has to be in writing and the questions have to vetted first by the government. In practice, this means that no special advocate uses it, because having the questions to the individual vetted by the government is a deterrent since the government is the other side in the case. For special advocates, disclosing the questions is viewed as prejudicial to defending the interests of the individual.

There has been a back and forth opinion on whether our system, under Bill C-3, would allow continued contact. Enough power is provided to the judge to allow such continued contact, much as there is, in theory, in the United Kingdom. In our view, the better approach is to affirmatively guarantee continued contact subject to a non-disclosure obligation. Mr. Cameron is here in large measure to describe his experience serving as outside counsel for SIRC and how he, with access to that secret information, actually benefits from continued contact. He will demonstrate how important that can be.

Our third recommendation is in relation to disclosure not to the special advocate but to the interested party. Currently, information cannot be shared with the interested party when it would be prejudicial to national security to do so. The standard under the Canada Evidence Act is different in that the judge considers whether sharing the information would prejudice national security and then weighs that against the broader public interest to create a balance. There is no such balancing in the immigration law. Last October, in their decision on the special advocate system, the House of Lords concluded that there be might be circumstances where the fair trial cannot be preserved even in when the special advocate is present. The House of Lords asserted that in that circumstance, the judge has to decide whether a fair trial requires more meaningful participation by the interested party, which would mean more disclosure. If the judge orders for the disclosure, the government may resist by saying that national security would be prejudiced, in which case they would have to withdraw that evidence.

With respect to their special advocate model, the House of Lords' tendency is to press towards a system of weighing the national security imperative against the fair trial consideration. We can learn from that, and so we have proposed some balancing language, modelled on the Canada Evidence Act, that could be inserted into the Immigration and Refugee Protection Act to allow the judge to weigh the evidence in terms of national security and broader public interest.

Gordon Cameron, as an individual: I do not have much to add to Mr. Waldman's and Mr. Forcese's remarks. I share their concerns about the legislation. For more than a decade, I have acted as a lawyer in the role roughly analogous to what is being proposed by this bill for special advocates but in the context of the Security Intelligence Review Committee. Minister Day was asked earlier why the SIRC model was not adopted for this legislation. Frankly, to all three of us 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.

As counsel in a SIRC proceeding, I or whoever was in the position would have unrestrained access to the entire CSIS file. You do not see only what the service decides to show you or the judge about the case they want to make against the complainant, as the person is called in the SIRC context. In the special advocate's context that would be a named person. You see everything in the file. On some occasions, the service has deemed some item of information to be irrelevant and has not included it for advance up front. Yet I, in my role as SIRC outside counsel when working on a team with SIRC inside counsel, would find it to be highly relevant and important to the presiding members. The issue of full disclosure, as happens in the SIRC model, is very important.

The other point that we have heard a lot about and that Mr. Forcese and Mr. Waldman mentioned in their report and in their comments to you today is the issue of continuing access. I understand completely the issue that has prompted the drafters of this proposed legislation to limit that continued access. Someone who has seen a file containing secret information has to be extremely careful when having contact with the named person. That being said, CSIS investigators do not have a monopoly on that skill. They see the secret file and they interview and investigate named people. It is not a skill that one is born with but rather a skill that one can learn. As well, one would expect experienced lawyers and advocates to develop such a skill quite readily, simply with understanding of the sensitivity.

I recognize that it is an important issue. Someone who has seen the secret file then has to be very careful when dealing with the named person. An experienced person who is a target of an investigation like this will use an interrogation as an opportunity to learn more from the interrogator than he gives up in answer to the interrogator's questions. You have to be conscious of this. Over the course of more than a decade and more than a dozen of these sometimes very lengthy hearings, I have had access to the named person for many weeks and sometimes months. Certainly I have had to be careful, but it is not beyond the capabilities of a reasonably qualified barrister to demonstrate such skill.

On both of the points that Mr. Waldman and Mr. Forcese have highlighted, we have a different model in SIRC. I have lived and worked with that model for a long time, and it works. Those are my comments.

Senator Jaffer: Mr. Forcese, when I asked about the SIRC model, the minister said that it investigates CSIS itself. He felt that it would not be an independent process if we were to use the SIRC model. He also said that the court was involved and he felt that it was a more independent process. As well, he said that this is not a criminal process but an immigration process, and if we started using the criminal test, the courts would be inundated. Could you comment on that?

Mr. Forcese: First, we used SIRC until 2002 in the same procedure for permanent residents. Something magical happened in 2002 with the Immigration and Refugee Protection Act, and suddenly we would no longer use SIRC. All of us, including the Supreme Court, have been puzzled as to why we moved away from SIRC. Thus, I am not sure that any of the concerns about SIRC being in a conflict have much merit.

As Mr. Cameron was saying, SIRC has a strong track record and resources to work on this kind of material and would be the logical place in which to situate this new model.

Mr. Waldman: I heard Minister Day talk about this not being a criminal process but an immigration process. However, I was before the Supreme Court of Canada the week before last on the second Charkaoui case. We made the point that it does not matter whether you characterize a process as criminal. The important thing is the impact that the decision will have on the individual. The impact may be as severe as or even more severe than most criminal processes if it results in someone being thrown into detention for years or, even when released, being subject to strict restrictions on their liberty and at risk of being deported back to a country where he or she faces torture.

It seems incorrect to say, ``This is not a criminal process and therefore we do not give the person full disclosure or full participatory rights because it is an immigration process.'' The Supreme Court has made it clear that the principles of fundamental justice are contextual and will be determined by the context. This context demands a high degree of participatory rights.

Senator Jaffer: My second question is on disclosure. A number of us asked the minister that question, and he said that information not seen by the special advocate will only be peripheral information, not the nub of the case. He also said that the special advocate will be given pertinent information.

Mr. Cameron: Lawyers would all instantly recognize as conflictual the notion that an organization that has it in mind to establish that a person poses a risk to the security of Canada would also be the ones to vet what information is relevant to that question. Even allowing the best of faith on the part of the person preparing the brief for the special advocate, and I think we have to be careful about assuming that, there will be differences of opinion about what pieces information are relevant. As I have said, there have been specific cases where information that tended to support a complaint or exonerate a person who had been accused of being a security risk was not in the case that was advanced by the service. Rather, it was discovered by SIRC in the course of its independent investigation.

In every case, I think the special advocate, if we have that model, or SIRC, if we are to refer the question to them, should have access to the whole file. With that available, the person's lawyer can decide what is relevant, not the people who are trying to have that person detained or removed from the country.

Mr. Waldman: I think we saw in the Arar case the problems with tunnel vision that occur when a security organization investigates and does not have proper checks on what they conclude to be relevant or not relevant. That is one example, but there are many others as well.

Senator Day: My question is a point of clarification. Each of you touched on the right of the special advocate to have full disclosure. I believe you were here when Minister Day was speaking. I specifically asked that question and he said, ``Yes, the special advocate can easily get more evidence that has not been disclosed to him if he needs it.'' I asked what clause of the bill that is under. We were rushed, and in order to save time we said that we would get the proposed section from the staff who were here with him. I spoke to the staff afterwards and they said that there is no such proposed section.

In effect, you are saying that there is not a provision for full disclosure. I had drawn to the attention of the minister proposed section 85.2(c) of Bill C-3:

A special advocate may

(c) exercise, with the judge's authorization, any other powers that are necessary to protect the interests of the permanent resident or foreign national.

The minister specifically said, ``That is not the proposed section.''

Proposed section 85.1(2)(b) says:

A special advocate may challenge

(b) the relevance, reliability and sufficiency of information or other evidence that is provided by the Minister and is not disclosed to the permanent resident or foreign national and their counsel, and the weight to be given to it.

However, there is no solution.

I think Mr. Cameron, Mr. Waldman, and Mr. Forcese have touched on this: What proposed section in the this scheme would provide the special advocate with the ability to obtain more documentation than is actually produced to him by the Crown?

Mr. Forcese: I was surprised by the minister's answer in response to proposed section 85.2(c). I had assumed that that residual or catch-all power would have permitted the judge to make such an order. I do not think it is clear enough.

In the proposed changes Mr. Waldman and I submitted last week, we propose adding a paragraph (c) after 85.1(2)(b) that would read:

A special advocate may challenge

(c) the scope of disclosure by the Minister to the judge and the special advocate of relevant information and evidence.

Therefore, we are proposing that the power and jurisdiction of the special advocate be enhanced.

Senator Day: That would presume that if you are able to convince the judge, the judge could order production?

Mr. Forcese: Yes, although we go on and also give the special advocate the power to request that SIRC be able to certify that there has been full disclosure.

Senator Day: You mentioned that earlier in your submission.

Mr. Waldman: Under the legislation, the judge has power and the special advocate could go to the judge and say: ``Justice, we believe that there has not been full disclosure. We want you to order that CSIS release the whole file.'' The judge will ask why, and the response will be, ``I have a gut feeling.'' That is the problem that exists now.

There is nothing the special advocate can rely on beyond that because he or she is restricted to what the service has provided to the judge and that is what he gets. It puts the special advocate in the position where he will have to make the argument to get full disclosure without having any of the elements to be able to justify that argument. The special advocate does not have the absolute right to get the disclosure without the justice's permission. That is the difficulty with a system of this sort. The special advocate will have to convince the judge, but how will he do that if he does not know what is in the file?

Senator Day: Currently, without amendments, under what proposed section would the special advocate proceed to the judge to try to get more disclosure? Minister Day said that that was not the proposed section.

Mr. Waldman: One would expect the judge has an inherent jurisdiction to order that, but it would be under that proposed section.

Senator Day: That was my thought, as well.

Mr. Cameron: It is important to note, as Mr. Waldman and Mr. Forcese said, that this notion of having to go to the judge to get full disclosure will be very difficult. As someone said, ``I have a feeling in my gut that there must be something else there.'' That is all you would have.

This has a simple fix: make the legislation default to full disclosure. If the Crown wants to limit disclosure, they can go to the judge and say, ``There is a section of this file we do not think the special advocate can see.'' If the judge agrees, it is taken away from you. However, the default is full disclosure. You could change a few words in the bill and that problem would go away.

Senator Tkachuk: If we did that, who would send this information? What countries would send us information if we give full disclosure?

Mr. Waldman: In England, the special advocates get disclosure of whatever the service gives them. That has not precluded foreign agencies from giving them information, because special advocates are under an oath of secrecy. There is no reason any country would be unwilling to disclose information, because the special advocate cannot disclose it to anyone else on pain of 14 years imprisonment in addition to the pain of violating their oath of secrecy. It has not impeded British intelligence agencies from getting information.

Mr. Cameron: The SIRC process is there, and other intelligence agencies know that there is an independent agency in Canada that has full access to everything they send to CSIS. Yet the information exchange goes on. I do not think this would materially change that point. I think it is a valid point. We do want the highest level of cooperation with other international security agencies, but nothing we are proposing would change from the status quo as it exists with SIRC.

Senator Joyal: Mr. Cameron, your comment gives me pause regarding the potential for constitutional challenge of the provisions of the bill that are less than the protections provided in the SIRC process in relation to a fair trial. The Supreme Court has been clear on the meaning of a fair trial, and I quote the court:

The right to a fair hearing comprises the right to a hearing before an independent and impartial magistrate who must decide on the facts and the law, the right to know the case put against one, and the right to answer that case.

If you can you prove to the Supreme Court that the procedure of full disclosure has been implemented in the SIRC process for 10 years and has functioned without impeding national security, it seems to me that if you come with a system like this one that does not meet the same level of disclosure, you have to convince the court that the risk of full disclosure would endanger the objectives of the limit that is included in section 1 of the Charter.

Mr. Cameron: Yes. I think Mr. Forcese and Mr. Waldman have addressed specifically the risk of a challenge to the constitutionality of this proposed legislation because it provides less than what I will call the SIRC level of fairness to the named person.

Senator Joyal: The Supreme Court has recognized the SIRC model in its decision and recognized another model. On that basis, it seems to me, we would have had to temper the special advocate model with what we learned from SIRC and how SIRC has functioned to maintain the objective of national security. That would be a fair approach to question the constitutionality of the limit to full disclosure.

Mr. Forcese: I think you have hit the nail on the head. The Supreme Court in Charkaoui v. Canada said that you do not have to create a perfect system, but if this model goes through as proposed and these deficiencies are not corrected, people will say we are achieving greater fairness with SIRC than we are with Bill C-3. The SIRC model now is used in relation to a person denied security clearance who does not get a promotion in the government. That person gets a high level of fairness. Under Bill C-3, a person who is detained indefinitely or subject to stringent conditions or removed from Canada to the possibility of torture gets something less. Faced with that conundrum, I suspect that the Supreme Court may have some strong things to say.

Senator Joyal: If the government wants to succeed in such a contest, the government must rely on section 1 of the Charter and answer the three questions of the old test to survive the challenge.

Mr. Waldman: They will not be able to survive the challenge, because they will lose on the minimum impairment test, which they lost on the last challenge. Given the extraordinary nature of a process that denies the named person anything short of full access to all information, it will be demanded that the closest thing possible be achieved. It is obvious to anyone who has studied this in depth, such as Mr. Forcese, Mr. Cameron and I have, that this bill falls short of that. It does not make sense to have Parliament pass legislation that will fall short on several key issues necessary in order to pass constitutional muster.

The SIRC model will stand like a light against which everything else will be judged, and this bill falls short of the SIRC model.

Senator Joyal: My next question is about continued access to the person. That seems to be the other test on which this bill could fail in a court challenge. To prevent the special advocate from having access to the person without disclosing to the executive the elements of the question you want to ask falls short of a fair trial. If you can show to the court that SIRC provides you access to the person, then this bill would fail on the second test.

Mr. Cameron: Yes. Normally, in a case that did not have security concerns, you would see an allegation about your client and ask them questions about it. For example, if it was alleged that they were at a terrorist training camp in Pakistan in the summer of 1995, you would go to your client and ask what he was doing in the summer of 1995. If he shows you that he was employed five days a week at a car wash in Montreal, you can vindicate that allegation. If you cannot talk to your client, you cannot get the information. All you have is an allegation and no way of rebutting it.

In this process, when you talk to the named person, you have to be very circumspect. If you asked what he or she was doing in the summer of 1995, he would put two and two together and know more about the secret information than he should.

Obviously, I cannot be specific about cases on which I have worked. However, in a situation like that, it was as simple as asking a person for his curriculum vitae. That disclosed nothing about the secret information, but told me what he was doing at the time he was alleged to be doing something else.

The service sometimes is not in a position to ask questions like that. However, I believe you are correct in observing that it is sometimes only through continued access that you are able to get the other side of the story, the explanation or the rebuttal of allegations made about a person.

You have to be very careful. I have no doubt about that. You have to understand the risks of the questions you ask. However, with proper training in a population of people who for their career are trained to know how to ask questions intelligently, I think it is a manageable process.

Senator Andreychuk: We are all now talking about the SIRC model being the ultimate model. I thought this committee had come to the conclusion, as the Supreme Court put it, that it was probably not the perfect model because of the two competing issues. The special advocate model found favour with a number of people, including in this committee.

The British have pointed out the weaknesses in their system, but they have not scrapped it. They are trying to get it perfected.

Mr. Forcese and Mr. Waldman, since you have studied it, what do you see as the shortcomings of the SIRC model?

Mr. Forcese: First, let me share an anecdote. With regard to the United Kingdom's model, they think they based their special advocate model on our Federal Court special advocate model. They were of the view that we had a special advocate that predated theirs in the mid-1990s within our Federal Court. We did not. What we had was SIRC. It has come full circle. They drew on SIRC to develop their model and now we have cut and pasted that to bring it back to Canada.

You made some comments about the inadequacies of SIRC. We are not proposing that we return to the pre-2002 system. We are proposing that SIRC be brought in and that its strengths in terms of full disclosure be exploited. The reason we are proposing that as opposed to going with the full-fledged SIRC model is that there are perennial complaints that SIRC is a slow form of adjudication. There are concerns that the service does not necessarily cooperate expeditiously with complaints that are brought before SIRC. Those are shortcomings that practitioners who have practised in front of SIRC would probably communicate.

Mr. Waldman: The way the legislation was prior to 2002 was one option. In our report, we said that you do not necessarily have to have that, but you must have the key attributes of the SIRC process. Those attributes are full disclosure — access to the full file — and ongoing communication. Those are the two most important points.

One option would have been to go back to the SIRC model, but you are correct: there are criticisms that it is too slow, that it does not have enough resources and that it does not necessarily fit easily into a judicial-type process. Having said that, you could take the aspects of the SIRC model and bring SIRC in, which is what we proposed.

As a special advocate, if I were to be appointed one, I would be profoundly concerned if I did not have the entire file. I would be profoundly concerned to have to rely on the good faith of CSIS. I am not saying that CSIS does not act in good faith, but they have their own view of what is relevant. It would bother me if they were the only ones to determine what is and is not relevant.

The idea is to bring SIRC in and say to them, ``You are an independent agency with security clearance; you look at the file and bring out anything else that CSIS has not disclosed that you think is relevant.'' I think that would have satisfied us that in such a context we would have someone else certifying the disclosure. You do not have to have a SIRC model, but you must have the attributes of a SIRC model.

One option was the SIRC model, but you do not have to go with that. However, you must have everything that SIRC has available to it in any model that you adopt. I hope I have answered your question.

Senator Andreychuk: If I recall, from studying CSIS and SIRC, there is a fundamental problem for SIRC. You get the information, hopefully, because you are working in good faith with people who are working in the best interest and professionally within CSIS, but their capabilities are limited to a paper trail — and now, technologies. I am dating myself to the first days of CSIS.

Mr. Cameron: I do not know what you mean by the suggestion that they are limited to a paper trail. They certainly have access to all of the paper and electronic database information that the service has. Then, in the context of a complaint hearing, they hear the evidence of the investigators on the file and cross-examine those investigators. It is not just a paper trail; they can ask any question they want of the investigators and get the answers.

Senator Andreychuk: However, you will only ask the questions if you have some knowledge about some issue on the cross-examination. Are we not back to the same conundrum? What do you base your cross-examination on? You base it on having received some information. You are back to the beginning.

Mr. Cameron: You received all of the paper and electronic database information pertinent to the complainant. Then you have heard live from one or several investigators who have conducted the investigation into the complaint. You now know pretty much everything that the service knows, so you cross-examine on that to test their assertions.

It is a fairly thorough process. To come to your point about the weaknesses in the SIRC system, I think they are all resource issues. SIRC's adjudicators are per diem members who have other lives, and SIRC has a relatively small staff. Therefore, cases take a while to make their way through. However, those are just resourcing issues; they are not inherent in the features of the model. They would be quickly solved by permanent members and more staff.

Mr. Forcese: As I understand what you are saying, your concern is that SIRC is only as good as the file that is given to it by CSIS. In the Bill C-3 circumstance, so, too, the special advocates will be only as good as the file given to them by CSIS, so how do you solve that conundrum?

To draw on the U.K. experience, where there have been concerns about whether or not there has been full disclosure, there are now regulations in the U.K. system that say emphatically that you must disclose all information, especially exculpatory information. There is also a due process standard that you must undertake as a security service to review your files and engage in the following activities to ensure that you have captured everything.

It would probably be an improvement over Bill C-3 and maybe SIRC, although I cannot speak for SIRC, to impose certain steps that the government must follow to demonstrate that it has made full disclosure. That has been the solution in the U.K. We will wait to see if the new regulations, which just came into force this year, cure anything.

Mr. Cameron: In the SIRC model, as we would advocate it for full disclosure to a special advocate, it is not a question of simply handing the special advocate a file. SIRC has an office at the CSIS headquarters. The SIRC counsel go there and have the ability to ask for anything. It is not difficult: when you see that document A refers to document B and you do not have document B, you ask for it and get it. It is not limited to what they give you; it should not be in the case of a special advocate either.

Senator Andreychuk: The point I was making, and I will leave it at that, is that, if I interpret correctly what the Supreme Court and government have done, they want to be sure that certain principles are adhered to — not particularly a model. If the model would produce the justice, fairness and balance that we want, we would simply adopt the model. Ultimately, the test is whether a system works. What is the measure of reliability? That will also depend on adjusting it from time to time as societies change, et cetera. We are back to scrutiny and back to the best effort, I guess — not the model per se.

Senator Nolin: You heard the minister's answer to my question when I asked him if the intent was to ensure that all relevant information would be available to the special advocate. His answer was ``yes.'' Hearing you, it does not seem that you agree with him; am I right?

Mr. Waldman: I have read the bill and I can tell you that the bill does not give the special advocate the right to demand the full file.

The way the certificate process works is interesting, because there are some subtle changes. The ministers receive the secret information from the intelligence agencies. They take that secret information, review it and sign the certificate. They prepare the first summary that goes to the person. All of the information that the ministers have received from CSIS then goes to the judge. The intelligence agencies control what information is provided.

Senator Nolin: To the minister?

Mr. Waldman: To the minister and to the judge. The special advocate gets only what the judge gets.

The judge clearly has the power, either in the legislation or by his inherent power, I would say, to order more. However, if he or the special advocate does not know what else is there, they are stuck with what the intelligence agencies give them. That is one of the main problems with this legislation. If that was the intent, it certainly is not reflected in the drafting.

Mr. Forcese: The actual language of the bill states, in proposed section 77(2):

When the certificate is referred, the Minister shall file with the Court the information and other evidence on which the certificate is based. . . .

That suggests that the government puts its best foot forward. To be fair, the Supreme Court and others have said that in these ex parte proceedings, you have the utmost good faith to disclose all relevant materials. One of the amendments we propose is to codify that in the statute.

The real issue in relation to the minister's response to your question is that the intent is to give the special advocate all the information, but there might be something on the periphery that we miss. He said something to that effect.

Senator Nolin: I did not take that answer in the negative but in the positive. I thought he said, ``We may have forgotten something, but if it exists, we will give you access to it.''

Mr. Forcese: Fair enough. I am not suggesting bad faith. What I am suggesting is that there be a third party — SIRC — in a position to review the scope of the disclosure and say, ``You missed this. Maybe you did not think it was relevant, but I can see how a special advocate with a different orientation who is charged with defending the interests of the named person might see that as relevant. Let us disclose that.''

This goes back to Mr. Cameron's comment about not putting the question of disclosure solely in the hands of the body charged with prosecuting the case.

Senator Joyal: I would like to draw your attention to two proposed sections of the bill. First, proposed section 85.1(1) of the bill reads:

A special advocate's role is to protect the interests of the permanent resident or foreign national in a proceeding. . .

Second, paragraph 85.2(c) reads:

exercise, with the judge's authorization, any other powers that are necessary to protect the interests of the permanent resident or foreign national.

What, in your opinion, is the status of the special advocate? Is he or she there to protect the interests of the permanent resident or foreign national in such a proceeding, or is he or she there as a watchdog of the procedure as much as the secret information is kept by the executive government of Canada?

I have problems trying to reconcile the limits put on the power or the status of the special advocate with the role that he has, according to the wording of the bill, to protect the interests. If you are a person who is to protect the interests of a person, if you have limits, they should be very well framed; otherwise, you no longer protect the interests of the person.

Mr. Forcese: Unequivocally, on the language of the bill, the task of the special advocate is to defend the interests of the individual. They are not there as an amicus curiae, as a friend of the court. They have one task: to defend the interests of the individual. That is a bit different from SIRC counsel's task, as SIRC council wear two hats. Their primary hat is to serve the interests of the members of SIRC, so we are in an amicus curiae role, and that role is usually in the ex parte proceeding served by also advancing the complainant's case. Here, there is not that double role or two hats. The special advocate is supposed to defend the interests of the individual.

The bill goes on to say that, however, they are not in a solicitor-client relationship, which then begged questions at the House committee: If they are not in a solicitor-client relationship, what does that mean in terms of confidentiality? If the individual does, in communications with the special advocate, provide information, would the special advocate be compelled or could the special advocate be compelled to reveal that information because they are not subject to privilege? That prompted the House of Commons to put in a new proposed section, 85.1(4), which has the effect of guaranteeing a confidentiality relationship.

Senator Joyal: How much could that status then be limited in relation to the procedure that you have put forward in SIRC, Mr. Cameron, and that you have experienced yourself?

Mr. Waldman: The procedure is limited by the statute itself, which prohibits communication afterwards unless you get authorization from the judge. You are right: a special advocate is aware that he is under a duty of confidentiality. One would expect that if he is representing the interests of the person he should be able to communicate, but the statute precludes that communication unless the judge authorizes it. That is one of the other problems with the legislation the way it stands.

The Chair: Did you have a supplementary, Senator Nolin?

Senator Nolin: Yes. Reading the sections that Senator Joyal just mentioned, could the judge entertain positively a request to have access to SIRC? Let us assume we are not amending the bill, because time is of the essence. We want to make sure that by the end of this week we do not end up having no process. Assume that a judge could entertain that as a reasonable request from a special advocate.

Mr. Forcese: In principle, we have that catch-all phrase in proposed section 85.2.

Senator Nolin: That is why.

Mr. Forcese: In principle, I strongly suspect that special advocates will also bring collateral challenges to the service under SIRC using the regular SIRC process. They will bring section 41 challenges under the Canadian Security Intelligence Service Act as matter of course. I think we will see SIRC involved. The difference by investing SIRC via the regular SIRC complaints process is that the structure of incentives is quite different. To go forward with your security certificate, government, you have to affirmatively abide by a requirement that SIRC certify that there has been full disclosure. In other words, if that does not happen, your system grinds to a halt. There is an incentive for the government to move expeditiously and cooperate with that SIRC procedure. If you are bringing a complaint as a collateral challenge as a special advocate under section 41 of the CSIS act, that extraneous incentive structure is not there. The same problems that people complain about all the time, namely that SIRC complaints take forever, will persist, I would assume, if you are dependent on collateral challenges.

Your ultimate question is how much discretion is available to the judge. We will wait and see.

Senator Nolin: The proposed section that Senator Joyal just referred to, proposed section 85.2(c), is a catch-all. We have the minister's testimony and the fact that his intent and the intent of the government is to make available full relevant information. There is a case there for a lawyer who wants to argue in front of a judge, ``Look, I have to defend the interests of an individual. Here is what the minister said and here is what is available. Can we have access to that to ensure that the relevant information is in front of you, Your Honour?'' Probably the answer will be, ``Yes, sir.''

Mr. Cameron: Not having investigated the issue, I cannot say this with certainty, but SIRC is a statutory entity. It has defined jurisdiction to investigate complaints that relate to specific circumstances. It does not have a catch-all jurisdiction to take a referral from the Federal Court and run with it just because a judge has asked that to be the case. I think you would have to do as Professor Forcese says: the named person would have to launch his or her own complaint to SIRC under SIRC's legislation, which is the CSIS Act, to get that. You would then have two proceedings going at the same time, which would not be efficient.

Senator Day: I have a supplementary for clarification. Senator Nolin and I agree that on its face, proposed section 85.2(c) should apply for disclosure, but the minister was very clear in my question that it did not apply.

I wanted to put that on the record. What the minister says here is one thing and what happens in court is another.

The Chair: All right. It is now on the record.

Moving to our next panel of witnesses, we will hear from Johanne Doyon, from the Québec Immigration Lawyers Association; Raj Dhaliwal, from the Canadian Auto Workers; Amir Attaran, from the B.C. Civil Liberties Association; and William Sloan, from the American Association of Jurists. These groups may be simpatico from time to time, but they have no official alliance. Ms. Doyon, please proceed.


Johanne Doyon, Quebec Immigration Lawyers Association: Thank you, Mr. Chair. I have been delegated by the Quebec Immigration Lawyers Association. This is an organization of lawyers who specialize in immigration law and who practise outside the field of criminal law.

We are used to a lesser standard of proof in matters of immigration and we are familiar with the government's prevention policy regarding immigrants and foreigners.

I have been delegated to represent the Quebec Immigration Lawyers Association in connection with the Quebec Bar's position on this bill, given that the Supreme Court has struck down the provisions on security certificates. As you know, I initiated this challenge in Mr. Charkaoui's case in June 2003 and brought it all the way to the Supreme Court.

My comments regarding Bill C-3 include those of the Quebec Bar Association and can be summarized quite simply. It seems to us that the government did not take sufficient account of the Supreme Court's statements regarding the probable impossibility of allowing someone to find out all the evidence and thus ensure principles of fundamental justice.

The statements by the Supreme Court in paragraph 61 of their decision indicate a prospective view or a prognosis on the part of the Supreme Court according to which it is virtually impossible to respect our charter — the legal guarantees — without disclosing the evidence to a person or finding special ways to disclose that evidence to him.

In Bill C-3, it is obvious that by depriving a special advocate of communicating with the client, after having familiarized himself with information and secret evidence, he is being prevented from representing the interests of that person.

In so doing, section 85.4(2) of the bill is clearly deficient and will be challenged with the support of lawyers' organizations, notably the Quebec Bar.

Similarly, where the bill includes in section 85.2 the power to cross-examine or present observations, it specifically omits giving the special advocate the power to investigate, to assign witnesses, to table evidence and of course, to consult the client after having seen the secret evidence.

In so doing, the hands of the special advocate are tied and he is being prevented from having any purpose. While the Supreme Court talked about ``imaginative means'' or ``out of the ordinary'' in the framework of national security, it did say: ``The rules of fundamental justice must not be made void of any meaning.'' Fundamental justice requires that a person know the evidence against him in order to be in a position to respond.

So why tie the hands of the special advocate who must, to the best of his ability and while respecting his code of ethics, ensure that secret information is not disclosed? I believe that this is a major and fatal deficiency.

Section 79 of the bill should specify much more clearly the role of the special advocate who can defend the constitutional rights of the individuals through a challenge, even an appeal.

In short, these characteristics indicate that the intent was that C-3 not bring about a true solution to balance the protection of national security on the one hand and the rights of the individual on the other. If this bill were indeed to be adopted, it would not be in the interest of Canadians because there will be another challenge and because this is a matter of fundamental justice and even the reputation of Canada.

I would also like to say a few words regarding standard of proof. The standard of proof in the case of security certificates is very low and this raises serious questions, because we are talking about secret evidence with a complicated special advocate procedure. The burden of proof is extremely easy for the government to attain, which is why there is a very appropriate concern by certain parties who say that the standard of proof should be increased given the circumstances.

Remember that the fundamental standard, contrary to what some representatives told you, is the consequences for the individual.

But unfortunately, we are not talking simply about removal. That is not true. There is certainly some question of removal, but there is more than that. The person is stigmatized, will never again be able to travel for the rest of his life, will be labelled a terrorist, will probably be in prison upon arrival in his country or even tortured, since our legislation allows for removal to a country where torture is practised and this person will probably be persecuted for many years, all this based on evidence that probably is not evidence, but only information. As you know, intelligence information can be contaminated and there is the whole extremely complex problem of reliability that comes into play.

The context in which security certificates are used deserves far more than what Bill C-3 contains. In my opinion, it is simply a parody to provide for some unusual means without there truly being an effect and some way to promote the individual's interests.

I wanted to say a word on appeals on certified questions. This seems to be totally insufficient in the case of the security certificate. When provisions were made for certified questions in immigration matters, it was because there was a large volume of immigration cases and legal questions are grouped together for appeals in the form of general, serious and general-interest questions in order to go to appeal. But imagine security certificates that are quite limited. The right to appeal should deal with the merits of typical and specific questions about the case at hand in order for it to play its role, that is to avoid having legal errors.


The Chair: We must limit the opening remarks to five minutes. We are well past that. We are trying to be generous, but I would like to draw that to your attention so that everyone gets their chance.


Ms. Doyon: Since you ask me to do so, I will close, as I am aware that other witnesses want to express their views and you will have questions for them.

Like the Quebec Bar Association, the Quebec Association thinks that Bill C-3 does not meet constitutional standards.


Raj Dhaliwal, Canadian Auto Workers: Thank you very much. All the people on my panel are lawyers, and I guess most of you are; I am the only one who is not a lawyer, so you have to be a little nice with me and not ask any technical questions.

Canadian Auto Workers welcomes the opportunity to express our views on Bill C-3. We are the largest private trade union in the country, representing about 260,000 members across the country from 2,100 different workplaces. Many of our members come from racialized and targeted communities. That is one of the reasons it is critical for us to be here today. Bill C-3 directly affects our membership and also our interest in the community.

CAW is well aware of and share concerns for the security of Canadians and people around the world. Indeed, it is our commitment to create a safer world in many ways, and much of our work is around human rights, equality, justice and anti-poverty in Canada as well as around the world. We appreciate the role of government in preventing violence, but the role of individuals is crucial in finding a lasting peace.

We are deeply concerned that the passing of Bill C-3 in its present form does not address the concerns raised by the Supreme Court in February of last year. As a matter of fact, the use of security certificates and special advocates with limited powers will not bring any significant changes to the status quo, which most Canadians view as unacceptable.

The use of security certificates establishes two systems of justice: one for citizens and another, with lesser protection, for non-citizens. This will continue to put the lives of many families in jeopardy.

This fundamental flaw in the legislation is illustrated by the following explanatory note: special advocates, however, would still be restricted from discussing the government's secret evidence with the detainees themselves, without explicit permission from the judge. They can also not compel the government to disclose all its evidence as is the rule in criminal prosecutions.

Special advocates allowed to hear secret information are also being given more rights than the detainees. The advocate will never have the ability to defend the detainee as well as the detainee himself. Information not given to the detainee and only released to the advocate is unjust due to its violations of equality rights, certain individuals having more rights than others, and, more importantly, legal rights under the Canadian Charter of Rights and Freedoms.

This bill proposes fundamental elements that are undemocratic and unjust. We believe that passing the bill in its current form is a serious concern to many Canadians. In our view, if government believes they have a case against any individual, they should proceed with charging the prospects of giving them a fair trial.

We have seven recommendations. We cannot discuss all of them at this time, but I will list them for you. First, Canada's response to security threats should not rely on distinctions between citizens and non-citizens, but should be based on human rights principles of equality. Second, regarding the right to legal counsel of one's choice, detainees should be able to select their legal representatives as their independent special advocates. Obviously, those people would need to pass the security test.

Third, we would prefer to use the Canadian criminal court rather than rely on the special advocate process, which has been heavily criticized based on the U.K. experience.

That said, we have recommendations for your consideration with regards to the special advocate. If the special advocate model is accepted, a relationship needs to be clarified and defined. The government should be able to maintain a lawyer-client relationship with the special advocate. The special advocate should be properly resourced to face the challenges of the team of government lawyers. The special advocate should be able to meet with the detainee and take the instructions after learning about particular allegations against the detainee. The risk of involuntary disclosure of sensitive information by the special advocate can be alleviated by requiring the presence of a third, independent person such as the Security Intelligence Review Committee's legal representative, as suggested by Mr. Waldman and Mr. Forcese in their study.

We urge the Senate of Canada not to repeat mistakes of the past by passing Bill C-3 in its present form. Instead, we urge the committee to give serious consideration to amending Bill C-3 to address public concerns with the draft legislation. As the chamber of second though, it is incumbent upon the Senate to make the necessary amendments so that the legislation will meet the Charter test.

Thank you, honourable senators, for considering the Canadian Auto Workers' views on this legislation.

Amir Attaran, British Columbia Civil Liberties Association: Thank you for your time today. I am a Canada Research Chair and Associate Professor in the Faculties of Law and Medicine at the University of Ottawa. I am testifying on behalf of the B.C. Civil Liberties Association, which since 1963 is Canada's oldest human rights organization. There is not another entity in Canada that has been to court as often for civil rights or that has longer experience predicting what sinks or what swims in court. With that in mind, here is BCCLA's position: the B.C. Civil Liberties Association opposes Bill C-3 and cannot recommend its passage.

While the B.C. Civil Liberties Association totally agrees that there are situations that so enervate national security that one must hear secret evidence to detain or deport a person, Bill C-3 is a deplorably poor framework to achieve that end. It is an indolent attempt by the government to fix the problems identified by the Supreme Court in its Charkaoui judgment last year.

If Bill C-3 were law, as it may soon be, our experience tells us that there is absolutely no doubt it will again be brought before the Supreme Court, where it likely would be found unconstitutional.

Let me reiterate that point for emphasis: the Senate is being cautioned today that Bill C-3 inevitably will be challenged before the Supreme Court where millions of taxpayer dollars will be spent defending it. The evidence is considerable that Bill C-3 cannot pass constitutional scrutiny. You have heard today from Mr. Forcese, Mr. Waldman and Mr. Cameron exactly why that is.

The government is on course with Bill C-3 for a costly and wasteful constitutional challenge which plays dice with Canada's national security, for it is far from clear that on a second defeat at the Supreme Court, the court will accord the government another year's grace period to amend the unconstitutional law. Rather, the Supreme Court will consider that it generously gave the government a year's grace, but the government waited until the eleventh hour to bring another unconstitutional bill before the Senate. In such circumstances, the court could not be blamed for striking down or reshaping the law immediately.

This last point is important because it has been intimated that the Senate must pass Bill C-3 without amendment or the Senate will be guilty of damaging Canada's national security. Such an argument, senators, invidiously forces you into the ``evil of two lessers,'' and it cannot be taken seriously. Rather, if the Senate passed Bill C-3 without taking care to amend its unconstitutional infirmities, it would create an unpredictable situation in which the Supreme Court would be justified to issue an order without a grace period, even if that meant precipitously freeing persons detained on security certificates. Thus, if the Senate believes amendments are necessary, it must amend, for the greater danger lies in prolonging the legal uncertainty.

The special advocate process placed at the heart of Bill C-3 is not adequate. While B.C. Civil Liberties Association believes special advocates are in principle a plausible idea, in practice Bill C-3 fails for two reasons.

First — you have heard this already — the special advocate may not view and thereby challenge all evidence in the government's possession.

Second, the special advocate may not in the ordinary course discuss and seek explanations for the evidence from his or her client, except subject to some limited exemptions as may be granted.

Together these failings mean that the rule of audi alteram partem — hear the other side — is violated, and on that basis it is all but certain that a death knell for this bill will be heard when it reaches the Supreme Court. In this regard, the B.C. Civil Liberties Association endorses the very thoughtful comments of Mr. Forcese, Mr. Waldman and Mr. Cameron today with only one exception.

The B.C. Civil Liberties Association does not believe that section 38 of the Canada Evidence Act, which is arguably the least satisfactory law in Canada today, should be intermingled with the Immigration and Refugee Protection Act. Section 38 gives the Attorney General 10 days to review potentially secret information for disclosure or non-disclosure, but in BCCLA's experience of litigation, the Attorney General frequently takes six months, or thereabouts, even longer, for review. The Federal Court never orders disclosure if the Attorney General is late beyond the 10-day limit.

Thus, the Attorney General dictates the timelines, not the courts.

Further, we know that CSIS abuses section 38 to keep information secret that is merely embarrassing as opposed to vital in a national security sense. Former CSIS Deputy Director Jack Hooper, you may recall, used section 38 to keep secret a note in which he wrote, ``I think the U.S. would like to get [Maher] Arar to Jordan where they can have their way with him.'' Where is the national security claim in that?

Since the Attorney General and CSIS have both shown that they cannot be trusted with the existing section 38 power, BCCLA cannot agree to any proposal to bring those powers further to bear on the Immigration and Refugee Protection Act.

William Sloan, American Association of Jurists, Canadian Branch: The American Association of Jurists is an organization of jurists from North, Central and South America. It has NGO consultative status with the United Nations Economic and Social Council and has been in existence since 1975. I have been a member for about 20 years. I have been on a number of trips to different countries examining various human rights issues with the American Association of Jurists, looking at situation such as in Chile in 1987 under Pinochet. There they had a clear view of what they meant by national security and how it limited judicial processes. I have seen other situations in Ecuador and Guatemala.

My practice in Canada for more than 20 years has been primarily as an immigration lawyer and occasionally in politically-tinged criminal cases. For example, I represented Mr. Jaggi Singh from Montreal, a well-known Canadian anarchist, in proceedings under the Canada Evidence Act before Justice Hugessen in the Federal Court. I think I am the only lawyer to have represented him, because he usually represents himself.

I want to echo what my friend said about disclosure. There was no terrorism involved in that case. It was a demonstration before the Sheraton Centre in Montreal where bags of paint were thrown at the walls and someone started a fire in a garbage bin outside. The information sought was in regard to the what the undercover police involved in the demonstration might say. They were not there to prevent terrorism. We got zero from the Federal Court. When we questioned the Sûreté du Québec's information bureau — which does not have a SIRC to review it — there were objections to almost every question we posed to the people who came to be questioned on their affidavits. Nearly all the objections were sustained and we got almost no information. We were told how many officers there were, and that was it.

These kinds of situations do not give you information. We have to worry about the introduction of the term ``other evidence'' in the act that is being amended with proposed sections 86, 87, all through 83 and at 166. What is ``other evidence?''

In my experience, other evidence is a policeman's opinion. I have seen it in cases where it is alleged that young immigrants are members of some street gang, for example. Absent any direct evidence, we are treated to the opinion of a police officer who comes in and says, ``I do not really have evidence, or I have coded sources, and here is my opinion. In my opinion, this person is a member of the group.''

I was an observer when the court rendered its Charkaoui decision.

Last year I was visiting Spain, observing a trial in Madrid. A judgment had come down recently against people who had been found to be associated with the ETA in the Basque Country. A large part of the evidence was the opinion of police officers. They did not have direct evidence linking these people to the ETA. Their evidence was the officers coming in as expert witnesses before the court and stating that in their opinion, such-and-such a person is such-and- such a person.

Sometimes they do that because they cannot present the evidence that they have, since it was obtained under torture. A cover for using declarations obtained under torture is that an officer comes in and says it is his opinion — based on opinion that we cannot really give you, based on information that we cannot really give you. There is that danger, when you allow this ``other evidence,'' that it is a cover for information obtained under torture. If you cannot know what the source of the information is, then you cannot challenge the fact that the information was obtained under torture. This ``other evidence'' is a serious problem with the bill.

I do not want to repeat everything that was said on the special advocate; good presentations have been made. The only other issue I would raise is that the right to appeal, as it is defined there, is not a right of appeal. The serious question requires that a general issue of law be identified so that a person may have a right of appeal. Questions of fact, such as the reasonability of a finding, are not questions of law, so they are not grounds for appeal.

By structuring it as it has been in the Immigration and Refugee Protection Act and by saying that it is only when a question is certified that the person has a right of appeal, you are in effect saying that he or she does not have the right of appeal on the questions of fact. Yet the questions of fact are precisely the ones that are problematic in these types of cases.

Senator Jaffer: Mr. Sloan, I am interested in what you said about ``other evidence.'' If I understood you correctly, you said that means torture. Can you please elaborate on that?

Mr. Sloan: It is not that it means torture directly. It is that it allows police officers to come in and give opinion evidence.

There has been a tendency in the past several years in the immigration context in Canada to exclude a permanent resident from Canada. If they are ordered deported, they have a right of appeal to the immigration appeal division. They lose that right of appeal if they are found to be a member of a gang, to be in some criminal organization.

Criminal organizations are legion in Canada. It can be four people deciding together to rob a corner store. The evidence that has been presented in most of these cases that we have seen in Montreal and Ottawa — I do not know what is happening in Toronto and Vancouver and other cities, but I assume it is the same approach — is that police officers come in and say, ``This person is a member of that gang, in my opinion. I have sources that tell me he is in the gang.''

That is the evidence on which it is found that a person is a member of the organization. That method is being used on people who are basically shoplifters or people stealing wallets in bars — we are talking about petty criminals. If they are using that against petty criminals, then certainly this ``other evidence'' will be used in the same way. It is the way they complete their evidence when they cannot present it, either because they do not have any direct evidence or when the evidence comes from a confession that were made that have implicated other people but they cannot use it because of how the confession was obtained.

They say, ``I cannot tell you what that source is precisely because I am protecting my source.'' They do not tell you why they are protecting the source. They are just protecting it. It could be that they are protecting an individual who was undercover, but it can also be a cover for declarations obtained under torture.

Senator Jaffer: Professor Attaran, your organization's work is well known to us, and I commend you for it. You have done many constitutional challenges. How long do you think that this process will take?

As a follow-up to that, a few days ago, a number of Pakistanis were arrested in the U.K. on information received. Can you also comment on how bad information can really destroy people's lives?

Mr. Attaran: First, let me say how long it will take. To get a judicial review in the Federal Court, up through the Court of Appeal and to the Supreme Court of Canada, few lawyers would say it takes less than two years. It usually takes quite a bit longer; two years would be regarded as the fast train. It can take several fold of that. In one case BCCLA is involved with now, it is one year, approximately, and we have not even had the first Federal Court judgment.

We are talking about a protracted process in order to get the Supreme Court to have a second look at this bill. By the way, it is also a very expensive process, not just for groups like BCCLA but for the Canadian taxpayer. Millions of dollars will be squandered testing a bill that any of my students could tell you is unconstitutional.

As for the injustice that is done when inaccurate information is used, I think it is legion. We have seen how it is not only inaccurate information but even disinformation that is sometimes promulgated by security agencies. Mr. Arar's case was one where disinformation was leaked by the security authorities in this country to damage Mr. Arar's reputation.

That is an altogether more malevolent instance of what you are talking about. However, inaccurate information in the security certificate process is not unheard of. There was a news story, perhaps two months ago, regarding Mr. Jaballah's case. There was a motion before the Federal Court concerning the adequacy of the conditions under which he was kept under surveillance at home, and photos were produced of the wrong home. The agents in question could not point a camera at the correct address and snap the correct photo.

If that level of competence is typical, you can imagine much more prejudicial things appearing in front of a judge in a hearing under Bill C-3, if it were law. In such an instance, a special advocate, because he or she is not able to readily communicate with a client, might not discover such a problem. Who would say that the photo is of the wrong home? The errors are legion, the remedies few, if the client cannot participate in the process.

Senator Andreychuk: I will pick up on that point, Mr. Attaran. I gather that you do not put much faith in our intelligence services. Are you saying that the real problem lies not in the act but in the intelligence capabilities, professionalism, honesty and integrity, and that we should not put good faith in our intelligence service? That is what I am hearing you say.

Mr. Attaran: That is not the formulation I would choose to present. I do not believe that in the making of law one should base decisions on faith. One has evidence, and where one has evidence the exercise of faith is unnecessary.

The evidence that we have is that the security services have erred in some extremely serious cases. Documents have gone missing in the Air India inquiry. There was inaccurate information or disinformation about Mr. Arar being leaked to the press. There was the suppression of information arising from the Canadian public inquiry about the Arar situation that was merely embarrassing rather than truly prejudicial to Canadian security. All of this is empirical evidence; it is not a question of faith.

On the basis of such evidence, there has been a considerable amount of soul-searching by the Canadian people. By the way, payouts of some $11 million to Mr. Arar show that suspending one's belief in evidence proved to be costly. I do not think it would be appropriate to pass Bill C-3 in its present form, because it contains very far from adequate measures under which a special advocate can test the reliability of the evidence in a security certificate proceeding.

Senator Andreychuk: This is fundamental to the work that this committee has done on the issue of security and the protection and safety of Canadians. Bill C-3 is just one small piece of that whole issue.

You are saying, if I understand you correctly, that intelligence cannot be trusted. I want to get at the intelligence. You have made points about the disinformation. My concern is that Bill C-3, even in an improved or different form, will not get at that issue. I appreciate that you are talking about it from the point of view of the accused or charged or detained person, whichever category we are in. I want to know how we improve the security services, as you seem the put the issue there as being very flawed. That is of great concern. If you are putting that on the table here, I want to know how we can go about ensuring better intelligence.

Mr. Attaran: That is a very large question and one that I think is the appropriate subject — and I would highly recommend it — for a different hearing.

Within the confines of the Bill C-3 discussion, which is our business of the day, however well performing or not well performing the security services are at a given moment on a given file, the adversarial process is the only process that will discern what is true evidence from what is nonsense. It is the only fact-finding mechanism that our Western societies have entrusted for centuries. Any bill that has as its animating principle to significantly dilute, to weaken, to strain at the fabric of the adversarial system cannot be a good bill.

Senator Andreychuk: Were your concerns about our intelligence-gathering capabilities as strong a year ago under the existing laws or are they tied to the fact that we have an opportunity in Bill C-3 and you want them strengthened? In other words, it is not Bill C-3 that created the problem; you are just not sure if Bill C-3 is the solution. Is that correct?

Mr. Attaran: There was a problem prior to Bill C-3, and that did go to the Supreme Court in the Charkaoui case, where the British Columbia Civil Liberties Association was one of the intervenors. In that case, a unanimous Supreme Court decided that the existing mechanisms of the Immigration and Refugee Protection Act were not constitutional and did not provide the named person an answer and defence in accordance with section 7 of the Canadian Charter of Rights and Freedoms.

It is BCCLA's opinion that Bill C-3 does not cure that fundamental constitutional problem. Hypothetically, if Bill C-3 were law tomorrow and the constitutional challenge could proceed to the Supreme Court next week, you would find out by the end of the month that it was unconstitutional. Unfortunately, the law does not unfold on such expeditious timelines. In the meantime, a great deal of injustice will be done to the individuals named in security certificates.


Senator Joyal: Thank you for your testimony, Ms. Doyon. I would like to congratulate you for having won your case before the Supreme Court, on an issue that was not simple and that helps us better ensure that the essential provisions of the charter regarding the principles of fundamental justice are reflected in immigration law and other laws in Canada.

You mentioned in your testimony that in your opinion, there were at least two clauses in the bill on which you would base a future challenge, namely clauses 85.4(4) and 85.2(2).

Are there any other provisions in the bill which in your opinion could be the subject of a Charter challenge? My question will be even more specific; I am talking about provisions related to appeal. Whenever a bill recognizes the right to appeal, should the principles of natural justice not be examined by the court with regard to the overall objective of the bill and the provisions of the Charter?

Ms. Doyon: First of all, I would like to respond to the last part of your question on the right of appeal. Even though we did not have an official right to appeal under the former legislation, we used the charter to take the file up to the Court of Appeal, and even up to the Supreme Court.

Senator Joyal: Even if the Supreme Court said in its decision — I do not remember in which paragraph — that the right of appeal was not an aspect of fundamental justice.

Ms. Doyon: That is right. Nonetheless, it remains that the court recognized our right to appeal. That may seem paradoxical, but in fact we were able to use the unconstitutionality of the act as grounds to take the case to the Court of Appeal, and then on to the Supreme Court.

The issue of limiting the right to appeal to certified questions might certainly be contested, and lead to a process of reflection. What is most striking about this bill are the sections you mentioned, and the fact that section 83.1(i) is exactly the same as the one which the Supreme Court found unacceptable in its decision and which constituted the core of its decision. That is the article which made it possible for a judge to base his decision on information and other elements of proof, even though a summary of the latter is not provided to the appellant. That article, which constituted the foundation of the Supreme Court decision, is repeated.

It is somewhat surprising to see that even after a decision as specific as that one was handed down on those grounds, the same error is being made again, and a system of special advocates is established with so many restrictions that it becomes a parody, since people's interests cannot be properly defended. I assume that it is because of the very clear nature of these faults that many groups are saying the legislation has been drafted without sufficient thought, for the purpose of finding a solution to the dangerousness issue, in regard to secret evidence and proper procedure in compliance with human rights requirements.

International law experts have looked at the circumstances in which a democratic state can override basic legal guarantees.

Risks or danger to national security can provide grounds for a democratic state to depart from equitable process. There are texts by international experts stating that those dangers must constitute a risk to the very existence of the nation and its democratic institutions. That is very important, because it is probably the most crucial debate in which Parliament will ever engage. In what areas can we authorize the government to set aside the Canadian Declaration of Rights, or the Charter of Rights and Freedoms? Those areas must be extremely limited, solely to cases where the existence of the nation is at stake. There must be a threat to the existence of democratic institutions, rather than a limited, local and restricted danger.

Parliament cannot even engage in that debate with Bill C-3. The first issue that would have to be debated, before any secret trials are conducted, would be this: Are we in the presence of a threat to national security? Or is there a threat to public security, but a threat we can contain as we contain any crime in Canada, within the standards of a right to a fair trial, under the usual rule of law. Then, I would simply subscribe to the comments made by Professor Attaran.


Senator Joyal: Mr. Attaran, I was interested in your submissions in respect of section 38 of the Canada Evidence Act. The committee's report of its review of the Anti-terrorism Act was published last year and contained four specific amendments to the Canada Evidence Act. Are you aware of them?

Mr. Attaran: I am not aware of the amendments, but I will have some reading tonight to catch up.

Senator Joyal: I will submit those recommendations to you and ask whether you would consider them appropriate, under the circumstances, for implementation by the government eventually.

Recommendation 12 states:

That the definitions of ``potentially injurious information'' and ``sensitive information'' in section 38 of the Canada Evidence Act, and the basis on which a judge may decide not to authorize the disclosure of such information under section 38.06, be amended to specify the way in which information might injure or relate to international relations, for example by restricting the authority to withhold information to situations where the information could breach specified confidences of another country.

Recommendation 14 states:

That section 38.131 of the Canada Evidence Act be amended so that, in determining whether or not a certificate issued by the Attorney General of Canada prohibiting the disclosure of information should be varied, canceled or confirmed, the judge must consider whether the public interest in disclosure outweighs in importance the public interest in non-disclosure.

There are two more recommendations, but I do not want to use too much time by reading the report.

This committee expressed a deep concern with section 38 of the Canada Evidence Act. In the context of Bill C-3, you make a direct link between the implementation of section 38 and the level of unconstitutionality of the bill. That is, if you go to the Supreme Court to plead the unconstitutionality on the three grounds that were suggested by Ms. Doyon, section 38 would be deemed unreasonable and not meet the test of the first section of the Charter.

Mr. Attaran: It is a mug's game to predict the fine details, but it is likely that over the next few years we will see one set of court cases targeting Bill C-3, if Bill C-3 is enacted into law. You would probably see a different set of cases seeking to find unconstitutional aspects of section 38 of the Canada Evidence Act.

The only reason that those came together in my testimony today is in relation to the recommendations of Mr. Forcese and Mr. Waldman. Generally, they are outstanding recommendations. The BCCLA has only one minor point of difference on section 38. We do not need to go too far into section 38, but I would encourage the committee to maintain what is obviously an abiding interest in section 38 of the Canada Evidence Act, because it is deplorable legislation and needs the fixes that you mentioned and read into the record as well as several others.

Senator Day: Mr. Sloan, on a point of clarification, you talked about the possibility of someone coming in and giving an opinion that brings in evidence that could have been obtained by torture. Are you aware of an amendment to the bill that was adopted in the House of Commons that specifically excludes any evidence that is believed, on reasonable grounds, to have been obtained as a result of the use of torture? Is that a happy amendment, from your point of view?

Mr. Sloan: That is consistent with our international obligations under the UN Convention against Torture, of course, and with Canadian law.

The problem to which I am referring is that the opinion evidence hides its sources. Too often, it is a way to hide information that was obtained under torture, which, on its face, is unreliable and illegal, and so it gets covered up with the dressing of a policeman's opinion.

Senator Day: I understand your ``opinion evidence'' argument. While putting aside the amendment and speaking to our international obligations in this respect, it must be remembered that it was not there when this bill was presented.

Mr. Sloan: No, but it could be pleaded if you know that it makes it specific; and that is a good thing. However, you must be able to discover that what is being used against you is information that was obtained under torture. What concerns me is the possibility to hide that.

Senator Day: If there is not enough disclosure, then it is hard to test that.

Mr. Sloan: It is not just a matter of disclosure, because the lack of disclosure is a big problem, which everyone has been addressing. However, even if you disclose to a special advocate that there has been some opinion evidence, can the special advocate get behind the opinion evidence to discover that what you are actually getting is an officer's transfer of information that was obtained from someone who was tortured?

Senator Day: That is an interesting point.

Mr. Attaran, you said that the government waited until the eleventh hour to bring another non-constitutional amendment before the Senate and that the Senate is being pressured to pass this bill. We are concerned that we are being asked to rush through some proposed legislation that could be amended, but we do not seem to have the appropriate amount of time to do so.

One way to deal with that is to add a number of observations to the bill that state what the Senate thinks should be done and then ask for an automatic mandate at review in one to three years so that we can revisit those issues.

Having in mind what the Supreme Court of Canada said and the drop-dead date of February 23, what would happen if we did not get this done by February 23?

Mr. Attaran: That is an outstanding question, senator.

Senator Joyal: Maybe we should ask Ms. Doyon to answer that question.

Mr. Attaran: The Supreme Court of Canada stated in its decision: ``However, in order to give Parliament time to amend the law, I would suspend this declaration for one year from the date of this judgment.''

That is the judgment of the court. The suspension of one year was in order to give Parliament time to amend the law. Yet, the Senate has only just received the bill after 11.5 months of the year have elapsed. The government certainly did not honour the grace that was shown to it by the Supreme Court. The extension was to give Parliament time to amend the law, as the Chief Justice said. Sadly, that is not what the government chose to spend its year doing.

On that basis, the appropriate response would be for the Senate not to pass this legislation. The BCCLA's position is that Bill C-3 is so fundamentally flawed that it should not be passed. The Attorney General can return to the Supreme Court on a motion to explain the government's reasons for introducing the legislation so late to this chamber and seek a further extension. There is nothing that prohibits the government bringing such a motion to the Supreme Court, saying, ``We are not yet ready to pass this bill. The Senate has expressed a need to amend it. We, therefore, come back and seek another two, three or six months, whatever the court is prepared to grant.''

That would be the proper way to proceed. To in a sense threaten the Senate by saying, ``Pass this bill or bad things will happen to our national security,'' is an absolutely penurious way to make legislation and it deserves no credit, in our view.


Senator Day: Ms. Doyon, do you have any comments? What would the consequences be?

Ms. Doyon: I agree with what Mr. Attaran said, but I would add that at paragraph 140 of its decision, the Supreme Court pointed out that individuals whose certificates have been deemed reasonable could apply to have them quashed. This does not, however, mean that there will be a regulatory vacuum insofar as we still have the Immigration and Refugee Protection Act and a host of other legal provisions that allow for negotiation as to the threat these people present — if indeed they do present a threat — and as to the conditions to which they should be subject if they are to continue living in Canada. There is, therefore, absolutely no need for fear or alarm on this front. Bear in mind that, in addition to immigration law, we also have the criminal law. The legal provisions are not wanting.

Senator Joyal: My question is for Ms. Doyon. On reading paragraph 140, it would seem that the Supreme Court does not automatically quash the certificate. I am going to read it aloud because I think it is extremely important that we all understand exactly what has been said.

It says, and I quote:

After one year, the certificates of Mr. Harkat and Mr. Almrei (and of any other individuals whose certificates have been deemed reasonable) will lose the ``reasonable'' status that has been conferred on them, and it will be open to them to apply to have the certificates quashed.

This means that they would have to initiate court proceedings. Allow me to continue:

If the government intends to employ a certificate after the one-year delay, it will need to seek a fresh determination of reasonableness under the new process devised by Parliament. Likewise, any detention review occurring after the delay will be subject to the new process.

Ms. Doyon: Exactly.

Senator Joyal: If I understand your interpretation correctly, you are saying that if Parliament does not pass this bill by February 23, 2008, from February 24 onwards, those subject to a security certificate should go to court and apply to have the reasonable status of their certificate revoked in light of the arguments put forward by the Supreme Court in its decision.

Ms. Doyon: That is exactly what is said at paragraph 140. It could not be any clearer. The court has set out what people ought to do if no new legislation is enacted.

Obviously, as I have already said, all of the other legal tools provided by IRPA still stand. Those working in the field already have all the necessary tools to tackle whatever threat exists, and to do so in a number of ways.

Senator Joyal: Thank you.

Senator Nolin: Ms. Doyon, I too would like to congratulate you on your work. I would like you to say a little more on the standard of proof that you would like to see introduced. You seem to have dealt with it in a fairly perfunctory manner in your testimony.

Ms. Doyon: Yes. I did.

Senator Nolin: I would like to give you the opportunity to elaborate your position, but without trying our Chair's patience too much!

Ms. Doyon: Thank you. In its current form, the bill maintains the standard of proof that was used previously, that is to say that reasonableness is the criteria insofar as the certificate states that the minister has reasonable grounds to believe that the person constitutes a danger.

The standard of ``reasonable grounds to believe'' that a person is a danger is less stringent than the balance of probabilities and, of course, less stringent than the ``beyond reasonable doubt'' standard. The Barreau du Québec argues that the consequences of these measures are so serious and stigmatizing that fundamental justice requires a higher standard of proof.

The reason that the standard of proof is so high in criminal law is not because it is the crime that is being addressed, but because an individual's liberty is at stake.

In other words, the Supreme Court is reminding us here — while also pulling the rug from under the minister's feet — that it is not the field of law that matters. It is not determining whether it is an immigration or criminal case that matters; it is the seriousness of the consequences that count. While it may well be a deportation case, it is also much more than that. A person's life is literally being destroyed — at stake are his reputation, his physical liberty and, indeed, his future liberty as, unless he is exonerated, he will carry the terrorist label with him wherever he goes for a very long time.

The consequences at stake are so great that they cannot be ignored. That is our view and that is the lesson to be learned from the Singh case, an old immigration case that was heard by the Supreme Court.

That is why the Barreau du Québec believes the standard of proof to be far too low, particularly with regard to security certificates. Bear in mind that this is a public process: the person is held up as a terrorist, yet the evidence is kept secret. All of these considerations leave the standard of proof open to challenge because it is simply blatantly unjust.

As you know, in certain fields of law, even in civil law and administrative law, in disciplinary cases, for example, it has been held that the principles of fundamental justice require a higher standard of proof than the balance of probabilities.

Yet in our area of law, as far as security certificates are concerned, the standard required is lower than that of a balance of probabilities. For a person to lose his status, to be deemed an exceptional danger, to be deprived of his liberty in the immediate and possibly long-term future, it is enough to prove that the person was or will be a danger to national security.

When you consider all of this together, it is clear that radical change is required, as the status quo is manifestly and cruelly unjust. It cannot be allowed to continue. I think that the majority of lawyers — be they from the Canadian Council for Refugees or the bar associations — agree that it would be unacceptable to continue with such a low standard of proof.

Senator Nolin: Thank you very much.


The Chair: I would like to thank your panellists for the input they have given to us.

The next panel includes Matthew Behrens, who represents the Campaign to Stop Secret Trials in Canada; Adil Charkaoui, representing Coalition Justice for Adil Charkaoui; and from the Justice for Mohamed Harkat Committee, we have Christian Legeais, the spokesperson, along with Mohamed Harkat.

Matthew Behrens, Campaign to Stop Secret Trials in Canada: I will speak quickly, given the time restraints. It is unfortunate, given the life and death ramifications of this bill, that we have so little time, but we will give it our best shot.

I coordinate the Campaign to Stop Secret Trials in Canada, which I have done for the past six and a half years. In that capacity, I have worked with the men who are detained, their families, lawyers and communities that are being targeted by CSIS and the RCMP. I have spent many hours doing that — in fact, almost all the hours from 2001 up to the present date, in terms of the public portions of the secret hearings. I think if you had sat in there with me, you would be a member of our campaign as well.

We have heard a lot of suggestions and questions today about how to amend Bill C-3, about maybe adding on some time and going back to the government for an extension. It would be our position that one of the things you have not heard about today is the fact that there are real human beings behind this legislation, people who are suffering on a daily basis — physically, psychologically and emotionally. It is very easy for us to say that we will just take another three months and maybe we will come up with something better, but there is a real human cost, and that must always be remembered.

In the time that I have here, I would like to ask senators some questions. The first question is what is everyone so scared of. We have five men who have been detained, collectively, either behind bars or on the most strict house arrest conditions in the history of this country, for 32 years and two months. What are we so afraid of?

Professor Attaran referred to CSIS earlier when he said that a lot of what is claimed as national security is simply embarrassing to the government. There is a strong case to be made here that the real reason that CSIS and the government are so intent on pushing through Bill C-3 is that they do not really have a case against these people. It is not only me saying that.

In the Arar commission, we received a document that came out, which was written on November 21, 2003. Like all good government documents that are released to us, it is largely confidential and blacked out. On page 3 of this document, there is a reference to the detainee, Hassan Almrei, who is currently in solitary confinement at Guantanamo North in Kingston. They talk about a concern because the evidence against Hassan Almrei ``does not meet the threshold for criminal charges to be laid against him in Canada.''

This document was written in 2003, and Mr. Almrei is still in detention. It also says that there are a number of comparable security cases in Canada, and we have to have a consistent line on them as well. One has to wonder how many of the other men currently detained under this process also do not have enough evidence against them to lay a criminal charge in Canada.

Therefore, why is the Senate — at least in public statements we have seen from the majority party — talking about making sure this thing gets through by February 23? Is it not bizarre that we are fast-tracking a piece of legislation here that every single witness who appeared before the House of Commons Standing Committee on Public Safety and National Security, save one, said does not meet muster and will not meet a constitutional challenge? Every single witness here today, save for Stockwell Day, who does not seem to be as up on the law as I had hoped he would be, has also said that this will not pass a Charter test.

This is supposed to be the chamber of sober second thought and not a quick, ready-made rubber stamp. If this bill passes, it will give a green light to CSIS to visit further terror on individuals, families and communities, with more secret hearings and indefinite detention without charge and deportation to torture. The kind of shoddy intelligence we have seen in the case of Maher Arar has led to the torture of other Canadians, including Muayyed Nureddin, Abdullah Almalki and Ahmad Abou El Maati, who are currently the subject of the Iacobucci inquiry.

Maybe this article should be on wall in here every time you meet. It is from The Globe and Mail, and it says:

It was hyped as a terrorist map. It was cited by Egyptian torturers. It is a visitors' guide to Ottawa.

That is the kind of intelligence that is being used to torture Canadians overseas. Given that CSIS has a pattern of this over the years, I believe that this is the kind of intelligence that is being used in the security certificate cases.

Everyone on this committee, hopefully, has read the SIRC reports over the last 20 years. If you have, you will have seen that there is a consistent pattern that documents the fact that CSIS commits errors; they manipulate facts, exaggerate threats, substitute feelings for facts and show outright bias, as the SIRC report into Bhupinder Liddar showed in terms of denying him originally the clearance to be a counsel in India because of CSIS's bias. That was eventually fixed by SIRC.

Yet, this bill is going forward in light of the fact that we still have not had implementation of the recommendations from the Arar inquiry with respect to oversight.

Senator Andreychuk asked if it was a question of ensuring better intelligence. Really, the question goes to higher standards.

Part of the problem we have with Bill C-3 is that it represents two-tier justice. Basically, immigrants and refugees are subject to the lowest available standards in a process that is legislatively designed to be outside the rule of law, since the judge, according to proposed section 83.1(h) — which survived despite the Supreme Court having problems with it — may receive into evidence and base a decision on anything not normally admissible in a court of law. Essentially, that means we are outside of a court of law.

We have two-tiered justice. Many of us will remember in our own lifetimes the horrific images of apartheid South Africa or the American South — whites-only bathrooms, drinking fountains and bus seats. By passing Bill C-3 you are sending a message that basically says, ``This way for citizens in the front door of the courthouse; this way for non- citizens through the back door of the courthouse.'' That is what Bill C-3 represents. It is the lowest standard of justice.

Are you also willing to engage in a process that will lead to the deportation to torture of the two men sitting on this panel as well as others subject to this process? What are we talking about here? Are we really willing to go along with a process that will subject them to electric shock, to waterboarding, to simulated drowning, to pulling out their fingernails? Bill C-3 guts the presumption of innocence in this country.

I have a question as well: Are we here today as window-dressing and a balm for the troubled conscience of some of you as senators, or will you really have the time to go back and have the discussion that is seriously required? If the clock runs out on this dreadful process on February 23, it is not a question of seeking an extension. Maybe CSIS and the government might actually be forced to do what they should have done in the first place: play by the rules of law that are supposed to separate us from the likes of dictatorships and repressive regimes. Would that not be a refreshing concept, to gather real evidence, not a bunch of newspaper clippings, which is what we see in the public portions of these hearings, and secret suspicions, and to lay a charge and have a fair and open trial, as would happen with any citizen, or otherwise let them go?

As we saw from the document that came out of the Arar commission, we know the answer: they do not have enough information to lay a criminal charge.

I anticipate that you might ask questions about amendments, but I would also like you to reflect on the state of where these men's lives are now. A good analogy is to a form of slavery. These are men who, along with their families, are right now owned by the state. Their chain is partly visible in the monitoring device that they are forced to wear 24/ 7. Their phones are tapped; their mail is opened. In Toronto, the wives and children are also imprisoned by house arrest. If they run out of milk or bread and need to go to the corner store, they are reminded by their masters that they need to make that request within 72 business hours' notice. They asked to be here but, in our haste to push this through the Senate, they have not been invited. We do not feel that shackle-free Sundays would be an appropriate balancing when it comes to getting rid of slavery any more than we feel that the CSIS advocate is an appropriate balancing in a process that is fundamentally flawed and unfair.

A year ago, the Supreme Court unanimously asked this question: How can you meet a case that you do not know? You do not need to be a legal expert to see that any way you dress up security certificates, you will still not know, unless you are actually charged and given the opportunity of disclosure.

Ever since that decision, the Canadian government has acted in a manner that can only be described as anti- democratic. This is what happens when we use Star Chamber processes. They eat away at democracy from within.

Last spring, the Federal Court that hears these secret cases commissioned a study that some of you may be familiar with. It was authored by Lorne Waldman and Craig Forcese. Rather than explore all alternatives, including the Criminal Code, it seems to predetermine the terms of the debate by focusing narrowly on special advocates only. The same court, perhaps embarrassed by the fact that it has always unanimously upheld this process that was unanimously rejected by the Supreme Court, continues to make conclusions based on findings that occurred under a process that has been deemed unconstitutional.

Minister Day did not hold consultations and instead waited a full eight months to introduce what is, with two exceptions, a mirror of the old bill and has proceeded to invoke fear and chaos to ram it through. While Bill C-3 was at the House committee, the Department of Justice was already advertising for special advocates as if this thing were already a done deal.

In the House, Bill C-3 went to committee after second reading, which basically disallowed the opportunity for significant amendments. The bill could have easily passed before Christmas, giving the Senate much more time, but, as you see, you have been boxed into a corner and are being asked for majority compliance to pass this by the end of the week. This is not democracy: this is legislation by fear, threat and intimidation.

We have been told by some of the senators and MPs with whom we have met that this is the best you can do, but I feel strongly that it is in fact the opposite of that. I know that some of you are troubled and some of you have said that we must just accept the reality of what is out there. You can only say that after you have experienced what it is like to sit in a solitary confinement cell without heat in a Canadian winter for four solid years; when you have lived with the threat of deportation to torture hanging over your head; and maybe when you have tasted what it is like to have your life ruined based on secret suspicions by a vindictive spy agency. Until then, the reservations you have, especially if you vote for this bill, even with several window-dressing amendments, carry no more moral weight than the unacted-upon reservations of those who played politics in South Africa, Argentina and countless other brutal regimes when it came to people's most basic rights.

I would like to remind you that some of the great German judges of the Weimar Republic in the 1920s went on to uphold Nazi laws that created different classes of citizenship. The judges of a democratic Chile also at best looked the other way under the Pinochet dictatorship. The former met their judgment at Nuremberg; the latter have yet to be held accountable.

The weight of history clearly lies upon all of us here today. We are calling on you, as the place of sober second thought, to be the conscience of Canada, to be on the right side of history and to say it is time that we stop two-tiered justice. It was wrong under Nazi Germany; it was wrong under apartheid South Africa; and it is definitely wrong here in Canada.

The Chair: For the Justice for Mohamed Harkat Committee, Mr. Legeais is the spokesman.


Christian Legeais, Spokesperson, Justice for Mohamed Harkat Committee: Mr. Harkat is going to speak to you about how the security certificate affected him and his family, and after that I will make some comments on Bill C-3.


Mohamed Harkat, Justice for Mohamed Harkat Committee: Thank you for giving me the opportunity to speak today.

December 10, Human Rights Day, five years ago, is when the nightmare started for me and my family. After 43 long months of detention without charge or access to evidence, one year in solitary confinement, time spent in Guantanamo North, 19 months of house arrest under the toughest conditions in Canadian history, I continue to suffer.

This grave injustice and torture has no end in sight for me and my family. Every day part of me died inside. Just recently, my family and I were devastated with the sudden arrest for alleged breach. I spent four days in jail and in segregation. My family was put under unwanted scrutiny and totally humiliated and exposed by the media to the entire country.

Today I demand justice. I wish to clear my name and move on with my life. I have dreams of walking free one day.

For the past 19 months, my wife and I have been prisoners in our home. My wife has become my jailor. She has lost her freedom and dignity. We have surveillance cameras in the house. I wear a GPS tracking device. My wife or mother- in-law has to supervise me 24 hours a day, seven days a week. I can never be left alone in my own home or in the backyard. All visitors, including family members coming to our home, are screened by the Canada Border Services Agency. Our computer room is under lock, and no communications devices are allowed in our home.

I have a curfew and boundaries. I report to the Canada Border Services Agency every day. I am allowed only three outings per week, for four hours. All outings are booked and pre-approved by the CBSA at least 48 hours in advance. All mail and phone calls are intercepted. I am followed by two CBSA agents, and the list goes on.

My life has been nothing short of the worst nightmare. I have never been charged or committed a crime. I do not know the evidence against me.

This is not the Canada I dreamed of. This is not the land of freedom.

I strongly believe the secrecy is taking me nowhere. My hope for a fair trial died when Bill C-3 was created. This proposed new legislation will continue to violate my rights as well as the Charter. The security certificate in the new bill does not offer any new hope in terms of change and justice.

The allegations against me have ruined my life. I continue to proclaim my innocence. I am outraged that my case is based on and has been tried on secret evidence. I want all Canadians to know the truth. I want justice because I deserve the chance to clear my name. That is what other Canadians stand for. How long will I suffer this terrible treatment by the Canadian government? It has been inhuman, consisting of both physical and mental torture.

Bill C-3 is the worst kind of result. The Canadian government has taken the easy way out by issuing the U.K. version of the special advocate that has proven to be unsuccessful and unfair.

I would like to ask each one of you to reflect on this proposed new legislation and ask yourself this: If you were in my shoes, would you accept this process? Would you put your life in the hands of a special advocate who cannot communicate openly with you?

Why is there a two-tiered system? Why am I being punished although I have never been charged with anything? Is the special advocate process good enough? Years of detention do not give me equality in the eyes of the law when criminals do not need a special advocate. Would you, could anyone, trust in this system enough to put your life in the hands of an appointed lawyer without choosing that person?

Therefore, I urge the Canadian government to allow me a fair trial. My committee, other organizations and my family and I will continue to fight until justice prevails. Everyone has been working tirelessly for years in order to see that I get a fair and open trial.

As a human being in this country, I was expecting justice. Today, I am demanding justice. I would like to thank you for giving me the opportunity to be heard.


Mr. Legeais: Mr. Chair, we believe that Bill C-3 is an attempt by the Canadian government to create the impression that it is making security certificates more in line with the standards of human rights, the rule of law, and fundamental justice expected by today's society.

Yet in the name of protecting rights, the government is doing quite the opposite. It continues to fan the flames of hysteria surrounding terrorism in order to invoke exceptional legal measures and to silence any calm and rational debate on terrorism and security. What is the nature of the problem and how should it be addressed?

We believe that a thorough debate is needed to explain why security certificates and secret trials should be abolished. We also believe that this public debate on security should not be framed within the context of immigration legislation.

Even more important, what is needed is a public debate as to how security concerns can be addressed while also protecting human rights. Thus far, attempts to strike a balance between rights and security have amounted to little more than the legitimization of rights violations, which carry serious consequences for our humanity as individuals and as a society. This dehumanizing process needs to be replaced by a humanizing process.

Bill C-3 preserves security certificates as they are and, indeed, in some ways, makes them even harsher. It maintains secret trials and secret evidence, as well as preserving the impunity of the state's agents of repression, particularly that of the political police, CSIS.

To our mind, security certificates and secret trials are medieval instruments that violate fundamental rights and have no place in modern society.

Bill C-3 has been presented as the government's response to the Supreme Court decision in the Charkaoui case and is being justified by citing extraordinary circumstances; in other words: we need to combat terrorism.

Not only does Bill C-3 not comply with the Supreme Court decision insofar as it fails to comply with a number of sections of the Charter of Rights and Freedoms, but it also betrays what lies at the heart of the decision — that such rights violations are not acceptable, will not be accepted by Canadians, and are unconstitutional. Bill C-3 allows these allegedly exceptional rights violations to become the norm.

The reality is that there is no legal obligation to legislate by February 23, 2008. Furthermore, were the act not to become valid, it would be all to the good, because you cannot protect Canadian's security by threatening to deprive them of their civil rights.

Our view — and I think that it is shared by a large number of ordinary Canadians, as well as those who fight for justice — is that security certificates are the metaphorical equivalent of a dagger that has been plunged into our body up to the hilt. With Bill C-3, the government is pulling the dagger out a few centimetres and trying to pass it off as progress. That is not how it works. That is not the experience of those who are subject to security certificates. That is not how it is interpreted by immigrants, refugees, or the Canadian public as a whole.

Mohamed Harkat lives under house arrest under the most draconian conditions in our legal history. He has explained how humiliating the conditions are for him and his family. The terms of release from prison and transfer to house arrest are so harsh and unjust that they are for all intents and purposes a means of harassing and punishing these individuals and their families.

The conditions are unrelated to public security. Furthermore, they do nothing to ease the pressure on those who are targeted by this unfair and widely criticized process. Detainees' families essentially become prison guards while their homes become a correctional facility.

It might, however, be more appropriate to speak of a detention centre, as opposed to a correctional centre, as the aim of a security certificate is deportation, not rehabilitation.

These terms of release introduce into the public consciousness the idea that the State can act with impunity and that rights violations and civil death must henceforth be accepted as part of everyday life.

In the transitional measures, Bill C-3 maintains these conditions, as it maintains Hassam Almrei's indeterminate detention in Milhaven, Guantanamo north, when the logical conclusion of a process that is found to be unconstitutional should be the immediate, condition-free release of any person held under a security certificate.

We see that Bill C-3 contains a proposal to create a special advocate, a narrow version of the British model, itself designed to provide minimum rights and justice and to sidestep the principles of fundamental justice. This special advocate will not be allowed to speak to the person without the judge's authorization. He will not be allowed to speak to the person targeted by the security certificate after seeing the secret allegations, and he can be removed by this judge, which takes away from his independence. Who decides that a piece of evidence will be kept secret, as its disclosure could jeopardize national security? On what basis and according to what criteria? This is an important question that is linked to public confidence. But Bill C-3 sweeps all of that aside, saying that the creation of a special advocate is enough. The fact remains that the public does not have more confidence in a special advocate. Moreover, what is unacceptable in a society that is supposed to protect the legal rights of individuals is precisely this use of secrecy.

The secret nature of the evidence, if there is any — to date, we have seen nothing but allegations — is maintained. It does not prohibit the use of evidence or information obtained by torture. The amendment made in this area has no impact. We know that Canada is a net importer of security intelligence and that CSIS does not attach any importance to the means used to obtain the intelligence.

Among other things, Bill C-3 maintains that a security certificate may be issued on the basis of intelligence and can use elements from Canadian and foreign agencies that are ``inadmissible in court.''

The standard of evidence for the security certificate remains the same: ``reasonable grounds to believe,'' the lowest level of evidence. Also maintained are secret trials, indefinite detention, deportation to torture, disappearance and death.

The right to an appeal is a truncated right. It will be up to the judge who maintains the reasonableness of the security certificate to also indicate the avenues of appeal. It is clear that the new version of the security certificate and the secret trials renews exactly what already exists.

The fundamental issue is that Canada is in the process of legalizing indefinite detention, secret trials, deportation to torture, and the impunity of secret service intelligence officers, all in the name of security. In doing so, it is taking attention away from the unacceptable violation of civil rights the guarantee of which, without exception, is the hallmark of a modern society. No rights are strengthened by this bill, on the contrary.

It is impossible to replace an unconstitutional process with another process that is equally as unconstitutional. It is impossible to replace unfair legislation with another piece of unfair legislation. No one with a conscience can accept that. This attempt to reform the security certificate has confirmed that it is impossible and that this medieval instrument must be abolished once and far all.

Adil Charkaoui, Coalition Justice for Adil Charkaoui: Good afternoon, Mr. Chair. I thank the committee for this opportunity. I had planned to speak for an hour, but I see that there are four of us, and that I will only have 15 minutes. I wonder how I am going to summarize my three points, since I had planned to talk about my life prior to 2003 — before the signing of the security certificate — about my life since 2003 and about how Bill C-3 does not protect my rights. I do not know how I am going to do that.

But before I begin, I would like to briefly summarize my feelings. I have the impression that my rights have been violated for a long time and that I am fighting for nothing.

Before undertaking this legal and constitutional campaign to have security certificates abolished, I had knocked on every door. I had appeared before several committees: the Standing Committee on Immigration, the Standing Committee on Public Safety, the International Commission of Jurists, the UN Committee Against Torture, the UN Working Group on Arbitrary Detention, and I have also appeared twice at the Supreme Court.

I have the impression that I did all of that for nothing and that, at the end of the day, CSIS always wins. I am fighting against a system that is ruthless, that uses every kind of low blow: obtaining evidence under torture, fabricating evidence, leaking information to the media. I have the impression that I am here today to legitimize a system. You bring me here — I thank you for this opportunity — but you are nevertheless going to adopt the bill. That is the impression I have. Parliament and the Conservative government had a year to implement the recommendations of the Supreme Court. They waited until October to introduce a carbon copy of the former act with a few cosmetic changes and as a result the system is the same, the injustices are the same.

I will have to undertake another constitutional campaign and go the Supreme Court with all of the stakeholders you have just heard from today, to say that the act is still the same and that my rights have been violated. I have not had the opportunity to have a fair and just trial. These are the principles of natural justice. I am fighting a ruthless system. I am speaking to you from the heart. I prepared a one-hour statement, but how am I going to summarize years of suffering in just a few minutes? I am just going to make a mess of my presentation.

I will begin. Mr. Chair, if you feel that I am going beyond my allocated time, simply stop me, please.

Prior to 2003, I came to Canada with my parents, who are present, and with my sister. I immigrated from Morocco. In 1995, I became a permanent resident. Mr. Stockwell Day, whom I see on TV, on CBC, and on CTV, says we are foreigners. That is false. I am not a foreigner. I came here as a permanent resident in 1995. I got married and I have three children in Canada. I completed my BA and my master's at the University of Montreal, and I am working on a PhD at the University of Montreal. So I did not parachute into Quebec, I immigrated, in accordance with all of Immigration Canada's standards.

So before I came to this country, legal background checks were conducted; and I sent for an anthropometric record from Morocco, and an Interpol document showing that I did not have a criminal record.

From 1995 to 1999, I would say that I lived quite a normal life. I studied; I finished my BA, and worked as a French professor; I paid my taxes; and I did not commit any crimes. I applied for Canadian citizenship in 1999. And on that day, the nightmare began, since the day I applied for citizenship: phone calls from CSIS, visits to my home, visits to the university, requests for security interviews, questions about my personal and religious convictions. And when I say ``religious,'' I am talking about Islam. They asked me questions about the mosques I attended and how many times I pray. They asked me questions about Palestine, like whether I believe the occupied territories are occupied. They asked me questions about my political and religious beliefs to grant me Canadian citizenship.

Then, after September 11, everything changed. There was considerable aggressiveness, threats of removal to torture. They came to meet me and proposed that I work as a stoolie, an informer on my own community. When I said ``no,'' you see the result in what has been happening since 2003. They waited two years, they signed a security certificate, and since then, all of my constitutional rights have been violated.

That takes me to 2003. I was arrested and thrown in prison, in a cell measuring two metres by three metres in Rivière-des-Prairies. I spent 21 months there without knowing the allegations or the evidence against me. When I say ``les preuves,'' in English you have ``evidence'' and ``proof.'' In French, we talk about ``preuves,'' but in fact there is no evidence. It is all about newspaper articles, information — we have proved this with Johanne Doyon and Mr. Larochelle — that has been obtained under torture or that has been fabricated in countries that do not respect human rights. This is about repeating hearsay, and evidence, when one cannot cross-examine the informers. It is incredible that people are treated this way in the 21st century. I am really disgusted with the way I have been treated since 2003.

Following 21 months of detention, Justice Noël finally released me. I have been released, but I am not free. It is true today that I live with my wife and my three children. I am working part-time as a high school French teacher, I am studying part-time at the University of Montreal — I am working on my PhD thesis — I am involved in my own community, and I continue to fight injustice, but I still wear the label of alleged terrorist. And you have no idea what that label means. For me, I am utterly ashamed to walk down the street every day and to be stared at by others, when I have not been judged by an independent tribunal. Each time, I am forced to say that no, I do not sympathize with al Qaeda and I am not a terrorist.

Every day, I have to argue and defend myself, and I have not been found guilty. You cannot even begin to imagine the stigmatization. You cannot imagine how my parents, my family — I am not talking about my family in Morocco, I am talking just about my family here in Canada, the country of human rights — how they must live and how they are stared at by others.

I am going to skip forward and move on to Bill C-3. Since 2003, when I asked Ms. Johanne Doyon to undertake a constitutional challenge, I was hopeful that one day I would be judged by an independent tribunal, with the same standards of natural justice as all Canadians. You know, my parents are Canadian, my sister is Canadian, my children are Canadian, whereas in my case, they claim that because I am a permanent resident I cannot receive the same treatment.

I am going to go back to Bill C-3. Ms. Johanne Doyon began the constitutional challenge. In 2006, the Supreme Court unanimously ruled that security certificates are unconstitutional and gave the government one year, not to reintroduce the security certificates, but to offer us — and this is clear in the decision — a fair and just trial. What is a fair and just trial? First of all, that means knowing that the allegations are. Here, I am going to give you some context and explain to you how the allegations in my file have changed.

First of all, the government had accused me of having the profile of an al Qaeda sleeper agent. I took a lie detector test, I gave evidence before Justice Noël and he released me because he felt that I was not dangerous.

Following my release in 2005, the allegations changed. CSIS claimed that I was a member of the GICM, a Moroccan group. We began working to take this evidence apart — when I say ``this evidence,'' I am referring to the allegation.

At one point, thanks to the work of Mr. Jean-François Lépine, a Radio-Canada journalist for the program called Zone Libre, we received a document from Morocco showing that the person who had given evidence against me had been tortured and forced to sign documents, without knowing what the documents contained. Of course, they were filled out by Moroccan secret services. When these documents were presented to the Federal Court, the allegations changed and the government said: ``Now, we have other allegations against Mr. Charkaoui. We have reason to believe that he belongs to a network of people who support not terrorist ideas, but the extremist ideas of Osama bin Laden.'' I am telling you this to give you an idea of how the allegations may change. There is nothing that prevents them from introducing a type of allegation and changing it at will. Bill C-3 does nothing to resolve this problem.

My second point deals with the evidence; again, I will give you the context surrounding my file. As regards the evidence, you have the case of Abu Zubaida. Mr. Abu Zubaida was being held by U.S. authorities in a secret prison, a black site, by the CIA. It came to light in 2007 that he had been tortured and that, in the same way as in my file, the interviews were destroyed by the CIA. That caused a huge scandal. Today, in my file, the Conservative government still uses Abu Zubaida as a witness, which means that evidence obtained under torture is still used.

You will say to me that with the amendments proposed by Ujjal Dosanjh to the House of Commons parliamentary committee, torture will be prohibited. But I should be informed of that. They disclosed to me the name of Abu Zubaida, but perhaps they have other evidence obtained under torture. And you are going to tell me that this special advocate will be able to denounce that. That is false. In fact, this is not a special advocate. It is an amicus curiae, a friend of the court. This is another person to legitimize an unfair system. He will not be able to speak to me. He will not disclose any abuse to me. He will not be able to denounce this publicly, because he will, I presume, be sworn to secrecy. That is what it says in the act. He will not be able to unveil secret documents that jeopardize — let us call it ``national security'' because we know full well that it is not national security — evidence obtained under torture. Bill C-3 does not resolve this issue of evidence received under torture.

A third point that Bill C-3 fails to resolve is the absence of checks and balances. Look at the Milgaard case in Canada, with criminal law where there is a right of appeal, where all evidence is public, and abuse occurs.

But at the same time, we have this system which is in fact a system of secret trials and most accused persons do not — I say ``accused,'' but in fact there are no accusations, because we are not going to be locked up in prisons. But we are. That is just how absurd this system is.


The Chair: We would like to have time for questions. Therefore, I hope you will be able to conclude, because we have given you more than double the time. We are trying to be respectful, but we have a long list of people wishing to make presentations. Please do your best, Mr. Charkaoui.


Mr. Charkaoui: I assume that you have a long list of individuals you will be hearing today from 12 to 8 p.m. and that, contrary to Parliament that took from the end of October to the month of December, you will do this in one day. That is unbelievable! I do not understand how the Supreme Court could have given the government one year to discuss this and to attempt to have a fair and equitable process, and yet you are only giving me a few minutes and are going to arrange to hear all the witnesses in one day! I am truly disappointed!


The Chair: Have you completed your presentation, Mr. Charkaoui?


Mr. Charkaoui: My last point is on the CSIS's unlimited powers. I would say that with respect to this procedure, CSIS has unlimited powers. They can submit the evidence — and when I say evidence I am referring to the information that is provided to both ministers, the Minister of Public Safety and the Minister of Immigration, for the purposes of signing the security certificate. They therefore launch the procedure.

Furthermore, CSIS is in charge of security assessments. If CSIS turns down a lawyer based on his leanings, that is whether he is from the left or the right, then that means that CSIS possesses additional powers. Besides launching the procedure, they also have the power to intervene directly in the choice of a lawyer. On top of all this, CSIS has the power to torture individuals through third parties in other countries, as was proven in my case, and to obtain information and include it secretly in their files.

In my case, in my file, and I assume this is true for other individuals, I am fighting a giant. This is truly a case of David against Goliath. I do have the means to undertake another fight but I am going to do it because I have to. I am being forced to fight once again for more justice, but it is my impression that this is never-ending.

I will now give the honourable senators an opportunity to put questions because I do not want to take up all the available time. Thank you.

Senator Joyal: Mr. Charkaoui, I will put my question to you because you were the last to speak but my question also applies to Mr. Harkat. Some of the legal procedures that you launched have resulted in a positive outcome. Nonetheless, the Supreme Court's ruling in February 2007 was unanimous in establishing very specific criteria for security certificates.

Bill C-3 may not be a perfect solution. We heard witnesses before yourself, and you were perhaps in the audience and heard them too. We want to make sure that a bill passed by Parliament meets the Charter requirements and stands a reasonable chance of surviving legal challenges. Do you not feel that, despite everything, despite the difficulties that you have described, despite the difficulties that Mr. Harkat also experienced, the Canadian legal system and the judges that apply it appropriately, in my opinion, in the cases before us, are objective enough to give you justice?

Mr. Charkaoui: I am not challenging the independence and competence of Canadian judges. I have no doubts on that question. The problem is that the judge of the Federal Court told me, while looking me in the eyes, that his hands were bound by the law. That is what the judge told me when I was in prison, when I had to come handcuffed with a belt and shackles around my feet. The judge told me that this was the law and that he was only applying it.

This is not the responsibility of the judges but it is the responsibility of Parliament and it is your responsibility. When you vote in legislation, unfortunately the judges simply apply it. The Supreme Court was clear on that. It sent the ball back into Parliament's court. I would say that it is quite inappropriate to hide behind the judges because they simply apply what you adopt.

Senator Joyal: Regardless, the judges do not blindly apply the law. The judges can decide whether or not the law meets the fundamental principles of the Canadian Charter of Rights and Freedoms. That was the conclusion of the Supreme Court during your hearing and that is what Judge Noël also concluded at the Federal Court level when he was seized with your conditions of confinement.

Therefore, even though the law may not be satisfactory, the fact remains that the courts are responsible for determining, in a free and democratic society, what constitutes justice for each individual and each citizen at the same time, because you obviously distinguish between both of those and immigration legislation does as well.

Mr. Charkaoui: I do not make that distinction; the Canadian Charter of Rights of Freedoms states that: ``Everyone has the right.'' It is the government that makes that distinction but the charter does not. Fortunately there was Mr. Trudeau at a certain point in time and the charter is clear. The word ``everyone'' does not say ``citizen'' nor ``immigrant.'' Let us be clear. When you tell me that the judges may prove me right, you are asking myself and my family to make yet another sacrifice and to fight against an unfair and unconstitutional system, and to take another three years to go the Supreme Court to denounce Bill C-3. That is what you are asking me to do. But you have an opportunity to put the ball back in Parliament's court and to make them bring about changes and amendments.

You know, personally, I am fundamentally against security certificates. What I am asking for is to be judged on the same basis as any other citizen. If it is felt that I am dangerous, which is absolutely false, then there is the Criminal Code; I can be arrested and judged publicly.


Senator Jaffer: I will speak to Mr. Harkat and Mr. Charkaoui. Many of us on this committee have been working on these issues since 2001 and are aware of your cases. I want you both to know that we have heard you clearly. In our deliberations, we will think about what you have said before the committee. The committee will continue its deliberations, even after whatever decision is made. We very much appreciate the sincerity with which you presented before the committee and got your point across.

Mr. Harkat: Thank you.

The Chair: Are there any further questions?

Senator Nolin: I have one.


Mr. Charkaoui and Mr. Harkat, did you request to be heard by our colleagues in the House of Commons?

Mr. Charkaoui: Yes.

Senator Nolin: Were you given an opportunity to testify before them?

Mr. Charkaoui: I testified and I gave approximately the same testimony as I just gave you. I was heard. Then the Bloc Québécois, as they had promised us, voted against the bill. The NDP did as well. Unfortunately, I was disappointed by the Liberals because what they said was that they did not want to go into an election and that they had to pass that legislation, because the Conservative government had chosen the worst time — October — and had threatened to hold confidence votes. They had to vote in favour of the bill and now we find ourselves unfortunately in this situation.


Mr. Harkat: Yes, I testified before the House committee and explained my situation. The problem is that the NDP and the Bloc Québécois voted against the bill and the Liberals and Conservatives voted for it. We were put into a situation because it was a case of pass the bill or go for an election. It means that now our lives are on the line. It is not only I but my family, too. I would like to know what the problem is. This did not start just yesterday; it happened five years ago. It will start again with this new bill and it will go before the Supreme Court again, and I do not how long it will take. All I want from the process is to defend myself and to clear myself in the end.


Senator Nolin: Mr. Charkaoui, I would like to know about the time you went before the Federal Court to challenge the certificate and about the famous summary provided for under the legislation. Can you speak to us about that? You read it; did that give you any information?

Mr. Charkaoui: When I was arrested in 2003, I was provided with a 400-page summary of the evidence. Those 400 pages contain approximately ten biographies of Osama bin Laden. There is a list of all the terrorist organizations in the world.

Senator Nolin: We can see a connection with the general information, but were you actually identified in each of the documents included?

Mr. Charkaoui: There were speeches from Saddam Hussein, the former president of Iraq. There was no way of drawing any logical connections between myself and those newspaper articles or research centre reports.

All I was provided with along with the 400-page summary was, I believe, 14 pages that dealt with me and provided my profile. First of all, I am Arab; second, I am a practicing Muslim; third, I speak several languages; fourth, I am studying for my masters and I will begin a doctorate; fifth, I travel to Pakistan, sixth, I am a martial arts expert; seventh, I am married and eighth, I own a restaurant. That is the profile of a sleeper agent for al Qaeda. That is what I was given.

When I testified before Judge Noël, I had to speak to those eight points in order to prove that it was absurd to arrest someone and throw him in prison on the basis of racial, ethnic and religious profiling.

Senator Nolin: Besides those 14 pages about you, in which you are described, with respect to the 380 other pages, was your lawyer able to identify the fairness or significance of this document in the famous summary?

Mr. Charkaoui: That document was drafted by CSIS, the 400 pages. I would say that any normal human being, if they had to read that kind of document, would become acutely paranoid. It is written in such a way that anyone who read those 400 pages would automatically think that the end of the world is approaching, that there is a huge threat, that al Qaeda will be invading the whole world, and that there will be attacks everywhere. It is unbelievable. When I started reading this in prison, I thought to myself that these people are sowing fear. Perhaps you met them. The way they present the global picture is that Islam and terrorism are spreading everywhere and that all means have to be used to fight this threat, this evil, as Mr. Bush has said so well. It is the same trend, the same way of thinking.

We have put a lot of pressure on the government. There is the Coalition for Justice for Adil Charkaoui that started a campaign. We had university professors testify, my colleagues at work, my family, and subsequently they started giving us documents bit by bit, vague allegations. Not when I was arrested, however, a few months later.

What this means is that it was not national security that prevented them from giving me these documents the first time, it was rather that they wanted to leave me in the dark. How can you explain that some documents were declassified or provided to the media as you saw in my case in the La Presse newspaper, whereas they were kept secret in 2003? The government is not defending national security. It is doing all it can to deport me in order to punish me for having refused to collaborate with CSIS. I am sorry, but this is not an issue of protecting national security, but of protecting abuse and incompetence.


Senator Nolin: Mr. Harkat, do you want to add something?

Mr. Harkat: Yes, I have 17 pages of allegations.

Senator Nolin: It is shorter than Mr. Charkaoui's piece.

Mr. Harkat: Actually, I have another 1,500 pages, too.

Senator Nolin: You had access to similar documents.

Mr. Harkat: Yes, but there was no mention of my name in documents released to the media and the public. They are talking about general articles from newspapers and television clips, from interviews about Saddam Hussein, about wars going on all over the world, such as what happened in Bosnia and another country. My name was not mentioned there; it only appeared in 17 pages. Sometimes, CSIS said ``they think''; a couple of times, they said ``they believe.'' For the rest, they just said ``they think'' — they think I have a connection, they think I went to Afghanistan, they think I was in a training camp. This is 17 pages. It is the only document I have. The rest, I sent to the media and everyone read it.

In one case, my name is there and it is just an article from the newspaper. They are collecting everything connected to Islamic themes or wars between countries. They put it there; I read it. Even the lawyers can do nothing about it because there is nothing there.

Senator Nolin: Was your lawyer able to contradict at least the suspicions voiced in those documents?

Mr. Harkat: Absolutely. Imagine that someone has been practicing law for 37 years, and he says I cannot meet the case. It means there is a question there. I cannot defend you with this. There is nothing there; there is no case there and I do not have the evidence against you.

What can you expect in that case? Any lawyer you want to hire says he can do nothing for you in this kind of process — document 17 ``they think'' and ``they believe.'' It is hard to defend myself against that because nothing is proved there. How can I answer the question?

They said I was in Afghanistan. There are no dates, no times. No one saw me there to answer the question. I am the only one who could answer that question for them. There is nothing; they just believe and think and that is all they do.

Mr. Behrens: Having been in many of these cases, I will give you an example of the way that some of the so-called evidence works. In the case of Hassan Almrei, who was arrested in October 2001, a picture book was presented to the court as evidence. In this picture book were lots of little cut-outs of Osama bin Laden, pictures of box cutters, airline cockpits and what not. We were told these were all found on Hassan's computer, which was evidence of the fact that he was a devoted fanatic of Osama bin Laden. We asked the court to accept that, from the government's point of view.

When we got Mr. Almrei's computer back, we looked at where those images came from. They came from his temporary Internet cache. We actually lined up the pictures of bin Laden to the BBC website from September 15. If any of us were looking at news websites at that time, all of those images would have gone into our temporary Internet cache, whether we knew it or not.

The way it was presented to the court was completely decontextualized. We presented back to the court all of the actual web pages linked up, date by date, picture by picture, news story by news story. We also showed what was not in the picture book — hundreds of images of angels weeping over the ruins of September 11, weight loss ads, soft porn — all the stuff that winds up in your computer and you never know how. That stuff was not included in the picture book.

When this information was presented in full context to the court, the court still found that they thought he was a bin Laden devotee. That is not because the court was necessarily biased — I certainly hope it was not — but because the standards are so low.

It is ``reasonable grounds'' to believe that it is possible that he might possibly be a devotee of bin Laden. It is based on that incredibly low standard, I think; if you look at the history of security certificates, only two of them have been quashed since 1991. The rest of them have been upheld. That is not because the individuals have not had terrific counsel — they have the best counsel in Canada — but because the standards are so low.

That is why we feel it is so crucial that if you had criminal law standards in these cases, it might actually help the intelligence services. As we saw in the Air India acquittal of the two men, CSIS and the RCMP were taken to task for not meeting those standards. I think if we set the standards high in terms of safeguards, procedural fairness and rights for the individual who is targeted, hopefully that will bring the skill level and the skill set up of the intelligence agencies as well.

Senator Nolin: Were you here when Ms. Doyon was talking about the evidence threshold, the standard that they would like to see higher? If we do not increase the threshold, even if we change the process, we will not achieve the objective of at least having evidence.

Mr. Behrens: Again, the question is what qualifies as evidence. If you look at what qualifies as evidence, it is anything that is not normally admissible in a court of law, including newspaper clippings, downloads from CNN, whatever fits the profile.

The way these cases are built is that CSIS comes up with a theory about an individual and builds the case around that theory. The problem is that any exculpatory information is withheld — and we have seen that; as I said, over the last quarter century of SIRC reports, that is often the case with CSIS — and how are we to know what is sitting there behind closed doors? As Mr. Attaran said, only Mr. Jaballah was able to determine that the photos that were allegedly of his house were not of his house, because he was part of a public process. We would not have seen that in a secret in- camera process.

Senator Baker: I want to thank the witnesses for the excellent testimony that they have given. I understand, and I think everyone understands who has watched you on television before this committee in the last few minutes, that you are not pleased at all with the government's response in this bill to the judgment of the Supreme Court of Canada. That is a given.

Most people, as you pointed out, who appeared before this committee are not happy with the government's response. The legal experts of our community, representing the Canadian Bar Association and the different bars across the country — the people we look up to as representing the legal opinion of the country — are expressing the opinion here today that they are not happy with the government's response.

Mr. Charkaoui and then Mr. Harkat, with the passage of this bill, is there any improvement in the legislation that will assist you in obtaining justice in your particular cases or that will assist other persons so affected?

It seems to me incredible that anyone would be subjected to what you have described to the committee. The only similarity I can find to your testimony is a book by Franz Kafka, The Trial, in which a gentleman woke up one morning and was charged with something, but he did not know what he was charged with.

Mr. Charkaoui, you said that you believe there are now three different concerns against you and that they changed as the attention of the investigators, or someone in this mysterious world, determined. You identified three distinct, individual, completely separate charges. How did you know this?

How do you know that the concern switched from this to this to this and perhaps to something else? I imagine you have spent a lot of time reading Canadian law, have you not, since all of this started? I would like you to answer both of those questions.


Mr. Charkaoui: I will begin with the second question. When I talk about changing allegations, these are summaries that we received. When I was arrested, the government claimed that there were reasonable grounds to believe that, first of all, I was, I am or I will be dangerous. Secondly, they claimed that there were reasonable grounds to believe that I have engaged in, do engage in or will engage in terrorism.

Finally, the third allegation, that there were reasonable grounds to believe that I was or I am a member of al Qaeda. This goes back to when I was arrested. When we went over the public evidence with a fine tooth comb, we saw that there is reference not to a membership in al Qaeda but to a profile of a sleeper agent. Furthermore, before the Federal Court, there was a certain Jean-Paul, whose last name we do not know, who came and testified on behalf of CSIS. He is the Deputy Director of Sunnite Islamic Counterterrorism. And he testified before Mr. Justice Noël that they did not have evidence that Mr. Charkaoui was a member of al Qaeda, but that they had reasonable grounds to believe that he had the profile of sleeper agent. I am talking about when I was arrested in 2003.

In 2005, I had refused to testify for 21 months. Since you alluded to Kafka, I am a French literature professor and I have taught Kafka to my students, and I have experienced it as well.

For 12 months, I did not testify and I proved my innocence through other people, my colleagues, my neighbours, my family and my friends.

In 2005, I took four polygraph tests and passed them all. And on that day, I told Mr. Justice Noël that I would testify. I testified, and afterwards, they let me go. But before that, the government said it had new evidence that it wanted to disclose to me. And therein were the different allegations.

My polygraph test dealt with al Qaeda. At that time, they pulled another rabbit out of the hat and started talking about GICM, a Moroccan Group. When we proved that this Moroccan Group was fabricated by the Moroccan Secret Services using torture, they changed the allegations. They want to cast a wide net. Now, they are no longer talking about al Qaeda or the GICM. The latest information we obtained before my PRRA — the Pre-Removal Risk Assessment, done before a person is removed from the country in order to determine if the person is to be protected from torture or not, and in my case this was first rejected in 2005 and again in 2007 — was that the government clearly said that there was a risk of being sent back to be tortured in the case of Mr. Charkaoui, but we are going to send him back to be tortured nevertheless because he is dangerous.

Imagine; they want to send me back to be tortured under the pretext that I am dangerous. I am sitting here before you, and on paper, I am very dangerous, extremely dangerous. I have to be supervised by my parents and tracked by a GPS. This is an insult to my intelligence. I am so dangerous that I cannot be allowed to go out alone. My students are teenagers, in an elementary and secondary school, and I may be sent back to be tortured because I am dangerous.

How is it that the allegations could change over time? I have the impression that every time I demonstrate my innocence and the unreliability of the government evidence, of their allegations, they change their allegations. Worse than that. In the case of Mr. Jaballah, he successfully fought his case in regard to the first security certificate. Then, they signed a second security certificate based on the same evidence. It was not the changing allegations that were the problem; is the fact that at any given time they can sign another security certificate. It is a vicious cycle, it is never- ending.

In response to your first very important question regarding the amendments, I would say to you that everything has to be amended. In order to abide by the Supreme Court decision and to have a fair and equitable trial, I must be in a position to defend myself, to have access to all the evidence. They may protect the names of informants if they wish, but we must know what they said and under what conditions they said it. If there are known informants, we must be in a position to cross-examine them. That is the first point.

Second, there is the standard of proof. You know that in criminal law, the standard of proof is beyond a reasonable doubt; in immigration, it is different. In my case, it is ``reasonable grounds to believe.'' The judge clearly stated that his hands were tied. This requires doubts; not suspicions, less than that.

Moreover, you are not risking much. You will be deported, labelled as a member of al Qaeda. That is no big deal! You will be deported to your country of origin where they will roll out the red carpet for you.

Third, the relationship that I will have with the special advocate, who is supposed to protect me: does he have the power to walk into a press conference and say that he has just seen me and that there has been scheming in my case, the use of evidence obtained under torture, or the fabrication of evidence? Does he have the right to do so or is he sworn to secrecy? Will he act as Mr. Ian MacDonald did in Great Britain? Will the special advocate have the right to resign and to say that the system is unfair? I hope you have a copy of today's La Presse.

Fourth, the issue is the proof of innocence. I am being asked to prove that I am innocent. I would like to do so. I have never committed a crime. I have my biometric file, I have no criminal record, so I am innocent but of what? Of having known someone at the mosque, of having played soccer with someone who has been charged, not with criminal offences but who is suspected of having talked to someone who is suspected of being a sympathizer, who is suspected of knowing someone who is at the other end of the world? It is incredible.


Senator Baker: I asked the question because, by law, Mr. Charkaoui was supposed to be given a summary. Did the summary at any point change, or was it that they told you that you were first a sleeper for two years, then you were a member of a Moroccan group and then a supporter of extremist ideas? Did you receive written notification that the so- called charges they were investigating had changed so dramatically? Did you receive notice in writing?


Mr. Charkaoui: Yes, it is in written form. Everything is documented. He sends me the government's written allegations, but not the evidence.

Senator Nolin: Do you receive any additional summary of evidence or reasonable suspicions to believe so?

Mr. Charkaoui: Yes, there are additional summaries, but they are not drafted in the same way as the evidence that has been tabled against me when I was arrested.


Senator Baker: That is amazing. One does not have anything to do with the other.

As far as this bill is concerned, your general answer is no, it does not help you at all. I presume that that is your bottom line on this bill: it does not assist you at all.


Mr. Charkaoui: That is what I repeated before the parliamentary committee. There are allegations that change depending of CSIS's interests. They absolutely want to prove they are right. Therefore, approximately seven months ago, there was an information leak. I was deprived of evidence that was leaked to the newspaper La Presse and furthermore, Mr. Justice Noël made a decision forcing them to reveal the name of the government official who gave them the document. There was a leak of information. In my case, a secret document was given to two journalists that contained confidential information of which I had been deprived for five years. This information was given to journalists.


Mr. Harkat: I would like to explain what happened in my case. The first time I went to the court for processing, they found a way to identify me with a description. I was operating a house in Pakistan. Then finally the court threw out that allegation. He does not take that paragraph, and she defended the case of Abu Zubaida. I met Abu Zubaida. For two years, we did not know where Abu Zubaida was. Now he is in Guantanamo, and we asked the American government for access. Maybe they will give good evidence against me. That is the Canadian government. The Americans refused access for Abu Zubaida to get information from him. We asked the government to help us to get information. They said that in the next process, we will not depend on what Abu Zubaida says. It is important. He is the second man after Osama bin Laden. If there is information, who is supposed to get information against me? Maybe they will help the government, but the Government of Canada said we cannot depend on what he said; we will depend on other information. If this is the person who met me there and saw me, they want to throw the evidence out. Where will the evidence come from, if you do not want to depend on that?

They connected me to al Qaeda and at the same time there is a group in Algeria. I left Algeria four years before the group started fighting with the government. There is democracy that took over and there is a group starting it. They connected me with that one. That one does not exist anymore. Another group has come. I do not know what the next allegation will be when they pass the bill. Maybe I will be connected to that one. They believe I was and I am and I will be. They will have me with this new group. I left Algeria four years before this group was created. I do not know anyone there. I do not even have contact with my family. How can I be in contact with this group that is fighting? Will I pick up the phone and call Algeria and say I am with you? It is impossible.

It is important to get all the evidence to defend yourself. If Abu Zubaida met him, we are supposed to question this guy. In Afghanistan, there is supposed to be a picture or supposed to be someone to question the evidence. Maybe I saw him in Pakistan. The first time I came to Canada I explained myself from the beginning to the end, all my life since I was born. They believe and they think, and it is hard to ask questions.

Mr. Behrens: Senator Baker, if I could quickly reference another case you might find of interest, it is not just sometimes that CSIS changes its case as time goes by. Sometimes you can be cleared, as with Joseph K. in The Trial, and still face this for the rest of your life. Mahmoud Jaballah was one of two that were cleared in 1999, rearrested in 2001, and in the open portion of the secret hearing CSIS admitted that they did not have any new information on Mr. Jaballah, just a new interpretation of the old information that had already been dismissed as not credible by the Federal Court. They will keep shopping it around until they can find a court that will uphold the security certificate.

Senator Baker: Mr. Charkaoui, as you know, the whole foundation of the judgment of the Supreme Court of Canada was that a person should know the case against him or her. If your case keeps changing in writing, even if you knew the case that was against you, by the time you knew that one, another one would be presented, and then another one after that, as has happened in your case. Even if you knew the case that was against you, that still does not give you anything if the case has changed, the charge has changed and the circumstances have changed.


Mr. Charkaoui: Precisely, CSIS is conducting a harassment campaign against me. Furthermore, the Supreme Court of Canada has just heard me, last month, on January 31, on the destroyed evidence and biased investigation of CSIS. The CSIS working method, as we learned before the Federal Court, is to carry out interviews with targeted individuals or with their entourage. They record the person or they take notes. Then they go back to their headquarters, write biased summaries, as was shown in my case, and then they destroy the recordings. Following that, they take these summaries and file them with the secret evidence. And sometimes, they make the person say what was never said. In the same way, they can operate like this with the alleged witnesses they have consulted.

What is unfair is the secrecy. And having a special advocate, one extra person at the hearing, in camera and ex parte, does not resolve any aspect of the problem. That is why I was saying that it is a purely cosmetic addition that does not deal with the unfairness.


Senator Baker: The section in the act allows them to destroy their notes, as you probably know, and that perhaps has to be corrected. That is the job of Parliament. I think it is section 12 or 14 of the act that allows them to destroy their notes.


Mr. Charkaoui: And I have to pay for all of these abuses and mistakes. Until the Canadian system corrects these errors, my family and I must continue paying and I must keep on fighting.

Even the Court Challenges Program, which allowed me to go as far as the Supreme Court, was abolished by the Conservative government. It requires an enormous amount of money to launch a constitutional challenge. And I have been fighting since 2003. I am really lucky in my misfortune to have the support of Muslim and Arab organizations, of human rights advocates, of Amnesty International, Human Rights Watch, the Civil Liberties Union, the Barreau du Québec, and the Canadian Bar Association.

There are other cases we are unaware of, for example, the Mourad Ikhlef case. He had won protection against deportation to his country of origin, Algeria. As he had done nothing wrong, he left. Do you know what happened? A decision was rendered by the United Nations two months ago; the United Nations condemned Canada for this deportation. Since the day he was deported, he has been in prison in the south of the country, in a labour camp, without any trial.

Security certificates are not a simple removal procedure, they are not a like three-walled cell as Mr. Stockwell Day was saying. Security certificates are the legal aspect of exceptional rendition to torture. After September 11, we realized that the American government had implemented this ``exceptional deportation to torture,'' as was proven in Mr. Arar's case. I presume you have read the report of the Arar Commission. The security certificate is a legal aspect of that. We deport people so they can be interrogated in order to know whether or not they are terrorists.


Senator Jaffer: I have a short question for both of you. This committee has been in favour of a special advocate. When I hear you speak, especially you, Mr. Charkaoui, about the special advocate, I that understand that you have not got much confidence in it. I know you have looked at the bill clearly. Proposed section 85.1(1) reads:

A special advocate's role is to protect the interests of the permanent resident or foreign national in a proceeding. . .

The role is to look after your interests and nothing else. From what I am hearing from both of you, am I correct that you do not have confidence in the special advocate?


Mr. Charkaoui: If the Federal Court judge, who is all-powerful, says to me: ``Mr. Charkaoui, my hands are tied,'' what kind of help will an extra person provide? There are already stenographs, I presume, who are taking notes, and how helpful will another person be? What can this lawyer do? Will he be able to denounce the abuses, like Mr. Ian Macdonald? Will he be able to come and consult with me? Will we be able to speak to each other? What will we do with this very low standard of proof? What are we to do about the ever-changing allegations, as I was explaining to you? What are we to do about the issue of the presumption of innocence? How are we to solve that problem? Bill C-3 does not solve any of these issues.

I believe that for justice to be served we have to be treated like every other citizen. There is criminal law; if a person is dangerous, there is the Anti-Terrorism Act. I would presume that you have a very good knowledge of the Anti- Terrorism Act provisions which, in some respect, are similar to security certificates. Other procedures exist in Canada, allowing me to defend myself in the course of a fair trial and prove that I am innocent, so that I may walk in the street with my head held high, like any other citizen.

But under security certificates, whether I win or lose, I will always carry the burden of these allegations. I will always live under a permanent cloud of doubt. I will not be able to travel, I will not be able to get on a plane, and I will not enjoy the same rights as other citizens, regardless of whether I win or lose. Because the allegations remain.


Senator Fairbairn: This has been a very emotional and troubling presentation from all of you in a country that we see as being extremely fair and extremely honest.

I have one question that you may or may not want to answer. Can you tell me how this has affected your children? Has this affected their lives at school? How is this affecting the way they are growing up?


Mr. Charkaoui: Thank you for your question. I have three children: Khawla is six, Abdullah is four and Asmaa is two.

I have a very good relationship with my daughter who, in some ways, avoids discussing Rivière-des-Prairies, the prison where I stayed. When she would come to visit me, there was always, you know, the window pane. As much as I may try to describe to you what that feels like — we know we are separated from our family and cannot touch them. For years: 21 months; 21 long months in my case anyway, during which time I could not hug my daughter. She was 19 months old. When I left she was still a baby and I could not hold her in my arms. We would knock at the window, and that is it.

I was entitled to one monthly visit, which at one point, came to an end and later on, I was allowed to meet with my children. But I could only meet them across a table and I could not hold them or hug them. I could only touch their hands. There were always two guards present during any one of these meetings, and I had microphones over my head as well as cameras. No privacy. When I was arrested my wife was pregnant. She gave birth to my son and my son identifies with my father more so than he does with me. He imitates my father in everything he does and sees me as an intruder. As far as he is concerned, I am a stranger.

When I was in jail, my children slept with my wife in the same bed, and since my release, my son has been seeing me like an intruder in my own house. I try to make up for lost time in any way I can, but you know, children ask questions we simply cannot answer.

One day, I was explaining to my son that jails were for bad people. Criminals are put behind bars. He said to me: ``But Daddy, you were in jail.'' I said: ``No, but sometimes mistakes are made.''

I wrote a poem called The Bracelet — I do not have here with me today, but in it I describe what I am wearing. I call it the bracelet of shame. One day, my son said to me: ``Daddy, what are you wearing around your ankle?'' I said: ``It is a bracelet.'' And he said to me: ``Why is it not made of gold like mommy's?'' I said: ``Because it is a gift from an uncle. It is, from uncle Sam.'' You know, sometimes, you just do not feel like it. Because I find that it is shameful to come here and have to air out my private life in this way.


Mr. Harkat: I have a niece and a family, and everything has to be approved beforehand. My niece plays hockey and if I want to see her I have to notify the Canada Border Services Agency 48 hours in advance. Sometimes it is at night and I cannot make it. For example, I have a grandmother on my wife's side who must be pre-approved before she comes to the house. Five years ago, she always came for visits but now I need approval first. My wife and I planned to buy a house and have children. How can I have children now? Sometimes I have to ask someone like my mother to buy bread for us. How can I have kids in that situation? I cannot even take a child to the store, to movies or to hockey. That is why we decided not to have children until the decision is made to clear my name. We will then have a second start.

Mr. Behrens: Senator Fairbairn, I would like to share a couple of things on behalf of the Toronto families. There are nine children in Toronto from the two families who are affected. They have had a wide range of problems from separation anxiety from living without a dad for several years and having to visit under the same circumstances as in Mr. Charkaoui's case. Now that their dads are home, similar problems have arisen. They have lost friends because the parents do not want to come over and be seen by the video camera or be investigated by CSIS. It is not just the families that are affected, because there is a ripple effect through the community. That is how this fear begins to spread as well.

Senator Fairbairn: This certainly is not the Canada that we know.


Senator Joyal: Mr. Charkaoui, I understand from your testimony that when you were told that a security certificate was being issued in your name, you were about to apply for Canadian citizenship.

Mr. Charkaoui: I applied for Canadian citizenship in 1999.

Senator Joyal: You did apply for it.

Mr. Charkaoui: I was arrested in 2003.

Senator Joyal: You were in the process of obtaining your Canadian citizenship. At that time, you were convinced that the only way to put these allegations to rest was to obtain your Canadian citizenship.

Mr. Charkaoui: That is right.

Senator Joyal: But how can you realistically believe that in a reasonable period of time you will succeed in clearing up the doubts that surround you in order that your citizenship application process can proceed unhampered?

Mr. Charkaoui: My answer will be brief. Before I appeared a second time before the Supreme Court, the government requested an ex parte hearing in private with Justice Noël, and the assistant director of CSIS claimed to have obtained an interview that I had given to CSIS in 2001, as part of the security interviews required for the Canadian citizenship application process.

Mr. Larochelle, who is absent today, called for a letter of explanation from the assistant director of CSIS. In this letter, he claims that there were two errors in my file and that an investigation is currently underway with CSIS.

The first error is administrative in nature: they lost certain documents. The second error is one of communication: when they found these documents, they did not put them in the ministers' files. I noted that in the summary of the interview, it is clearly stated that CSIS asked me questions about the Muslim community and the citizenship issue. It states that I told them that I no longer wanted Canadian citizenship. This interview was hidden from the minister, and when they received the security certificate, it was concealed from Justice Noël for seven years, which means that I am portrayed as saying things that I never said. They compiled a summary of the interview and kept it in secret files.

I think that the only way for justice to be done in my cases is to set up a commission of public inquiry in order to shed light on the actions of CSIS and its contacts with Morocco and other countries that do not respect human rights. A commission that would delve into how they manufactured evidence, tarnished my reputation and destroyed my life. This is the only way for me to regain my dignity and hold my head high.

Senator Nolin: Out of curiosity, after having heard about the problems entailed by your unenviable status, what hoops did you have to jump through in order to come to Ottawa today?

Mr. Charkaoui: When I received the Federal Court order authorizing me to leave the Island of Montreal — because under normal circumstances I am not authorized to leave— they notified me that I had to call the Canada Border Services Agency before leaving Montreal to inform them that I would be coming to Ottawa, which I did this morning. I went to school, I taught in the morning and at noon hour, and then I left to come to Ottawa. I called the authorities.

Senator Nolin: Do they ask you the reasons for your visit to Ottawa?

Mr. Charkaoui: They know, because they received a copy of the committee's invitation. My parents were supposed to accompany me. I would say that the conditions are not as strict as they used to be, but I am still subject to a long list of restrictions, some of which would shock you. They are authorized to enter my home anytime without a warrant. They can enter at midnight, at 2 a.m., anytime. I must wear this bracelet. I cannot leave my home alone. I must be accompanied by my parents, which means that they must be with all the time. Before, when I taught, my mother had to be in the classroom.

Later, they allowed me to teach without my mother having to be present. When I take evening classes, my father comes with me and remains by the classroom door.

My curfew is from 10 p.m. to 7 a.m. During this time, I cannot be outside my home. I must sign. Some of these conditions are a real insult to thinking people.

Senator Nolin: I understand, and I can only imagine the scope of the restrictions to which you are subject. But to come here, you had to notify the appropriate services.

Mr. Charkaoui: That is right.


Senator Nolin: Mr. Harkat, coming from Algeria, why do you not speak French?

Mr. Harkat: I was living outside the country and there was no teacher at the time. There was only Arabic.

Regarding how I came here, we sent a request to the judge on Friday and he allowed me to be in the committee from 11 a.m. to 7 p.m.

Senator Nolin: You had to go through a judge to give you the authority to be here?

Mr. Harkat: Yes.

Mr. Legeais: Yes.

Mr. Harkat: I have to call him before I leave here, and I must call him when I get home, before seven o'clock. Also, I had to come directly here; no stops in the middle. I cannot even go outside to have lunch someplace and come back. I have to stay here until this finishes and then go directly home.

Senator Nolin: Did they ask you what you would tell us?

Mr. Harkat: This time they did not. Yet there is still an officer with a bulletproof vest waiting for me at the front door.

I am sorry to say this but when I must go to the bathroom, I must call an officer and tell them that I want to use the bathroom. That is how bad the situation is. It is good that we found a place for two people here; I came with my wife.

Senator Nolin: Did they tell you that you enjoy privilege while you are testifying before us?

Mr. Harkat: No.

Senator Nolin: I am not surprised.

The Chair: I think that completes the questions for this panel. I know that the circumstances under which you got here were difficult. I would like to thank you for appearing here today.

On our next panel we have Ziyaad Mia, from the Canadian Muslim Lawyers Association; Raoul Boulakia, from the Refugee Lawyers Association of Ontario; Dania Majid, President, Arab Canadian Lawyers Association; and Paul Copeland, from Lawyers Rights Watch Canada. Witnesses are asked to limit their opening remarks to five minutes.

Ziyaad Mia, Canadian Muslim Lawyers Association: Good afternoon, honourable senators. Many senators on this committee are familiar with the Canadian Muslim Lawyers Association. We have appeared before you to address a number of national security issues. I will not review the details of our organization because I am sure you are familiar with it.

I had made notes about amendments to this legislation, because I am a realist and I want to amend this bill because I think it is quite faulty, but after listening to Mr. Charkaoui and Mr. Harkat, I may change my comments. I am impressed by these gentlemen and would love to see them become citizens of this country because they could make a positive contribution to Canada. They should not be subjected to the things that they are going through.

I believe you have the written submission that we prepared for you. The Canadian Muslim Lawyers Association's fundamental principle and position on security certificates is that the system does not stand up to legal logic. The distinction between citizens and non-citizens just does not stand from a legal and logical analysis. The House of Lords, in 2004 in the United Kingdom, grappled with that issue and came to the conclusion that it violates equality. Our Supreme Court did not want to address that question. That is why we are in this position. Had they addressed the question, they would have come to the same conclusion that security certificates cannot stand. Regarding section 1 of the Charter on minimal impairment and the constitutional test, as soon as we go down that road and we introduce the distinction between citizens and non-citizens, we know it does not meet minimal impairment, because we have citizens who are charged and dealt with as threats under the Anti-terrorism Act.

That aside, I have a fundamental belief that Bill C-3 as amended and sent to the Senate by the House is still unconstitutional. It needs an overhaul. It is still wrong and does not meet the tests set out by the Supreme Court. I will leave that for you to discuss with me. Ultimately, Chief Justice McLachlin said that we need a substantial substitute for being there, and this bill does not have that. You have heard much on this and I will repeat some of it.

On pages 10 to 12 of our submission are a number of recommendations for how this legislation can be improved to better meet the Supreme Court's benchmarks. I will walk through some of them quickly today. I hope you have had a chance to read them or will have after the session.

The fundamental one — and you have heard it from many other witnesses — is that there needs to be a robust, organic, ongoing communication and interaction between the special advocate and the detainee. If the proposed firewall remains, the whole thing falls apart; it is a farce, window dressing.

I will point you to your own report. I was a witness at this committee when you studied the Anti-terrorism Act on review. It is an excellent report, and you noted that ongoing communication between the special advocate and the detained person is a must. Your report states:

In our view, if the special advocate is able to communicate with the party affected by the proceedings only before receiving the confidential information, his or her role is rendered much less effective, as he or she is unable to meaningfully test the reliability of a specific piece of classified or sensitive information, or the validity of keeping it confidential. If the special advocate were to have access to the party and his or her counsel after obtaining confidential information, we are confident that the advocate would be able to maintain the secrecy of the evidence and not disclose it. That said, appropriate measures or protocols would need to be put in place to ensure that the affected party does not learn the confidential information.

Those are your words. They are quite wise. You have heard the concerns and I think you share our concerns. That is one of the biggest changes that needs to be made to this legislation.

Significant problems also exist in terms of evidence. We need to introduce a Stinchcombe type of disclosure model here. The wording is tricky in this legislation. The special advocates do not get all of the evidence. They get what the government decides to put in front of the judge. That sometimes is not everything. We need to get exculpatory information in there and all sorts of other things; whatever is in the file ought to go over, not only what the government decides to submit as evidence.

In a Stinchcombe-type disclosure, which is the case from the Supreme Court applying to criminal proceedings, you need the ability to call your own witnesses and evidence. That is not in there.

I was baffled that at the first go-round the person did not even have to be a lawyer, but I think they caught that and fixed it.

We need a prohibition on evidence obtained through torture. It was added, but it is still weak. What my organization and others called for is the prohibition of direct and derivative evidence from torture and CID — cruel, inhuman or degrading treatment or punishment. Derivative evidence is where the slippery slope is. It is it not the direct evidence but the derivative evidence that is the killer. The onus needs to be on the government to meet a reasonable threshold to show that its evidence is clean. The current thresholds are so low that it is not even evidence. I invite you to go to the CSIS website and read some of these reports. The quality of research is scary because it is so low.

Dealing with countries like Egypt or Saudi Arabia, or even the United States which we have now seen has engaged in torture, we need proof that the evidence to be introduced is clean.

The third recommendation we have is to abolish the Suresh exception. The Supreme Court opened the door a crack to deportation to torture. It violates our international obligations under treaty, customary international law and peremptory international law. You have the ability to lead the court on that because they have made a mistake. You can close that door.

We talked about the selection process and the provision of adequate resources. They are not defined and need to be nailed down. The selection process needs to be independent of government. We saw an ad published over the Christmas break that indicates that the qualifications include significant litigation experience, which is fine. However, if a Bay Street securities litigator who does not know about security evidence or national security tricks and the games they play or the immigration process is appointed as security-cleared counsel, that is a problem. That needs to be cleaned up as well if we are to fix this bill.

We need a way to end indefinite detention. We need also a motherhood clause, a non-discrimination clause that the legislation will not be used to profile people or to discriminate against them.

We have a number of broader recommendations that we made previously. Senator Andreychuk had asked how to clean up intelligence agencies and how they do their business. That is what these recommendations address. CSIS is like a junkyard dog — a necessary evil — but we must keep that dog on a leash. We need light shining on these issues to keep it honest.

The reality appears now that you honourable senators are being played, and some members in the other place are playing a game of chicken with you. They are asking who will blink first on this. They are pushing your buttons and saying that if you do not pass this legislation this week, the sky will fall. They are not playing chicken; they are playing Chicken Little with you. On February 24, if this legislation dies, the world is still the same.

Do not think you do not have an option. You do have an option. I think Senator Baker at the Bill S-3 hearings I watched on the Internet the other day raised the point that the ball should be put back in the Minister of Justice's and the Attorney General's court. He can go across the street and file a motion asking for an extension because we would rather have better law. If you can, try to get consent, but try a non-consent motion as well. We should not pass bad law just because the clock is ticking. There are options, and I think you have them. It is in your hands.

Raoul Boulakia, Refugee Lawyers Association of Ontario: The Refugee Lawyers Association of Ontario, representing practitioners in the field — often people who are either under security certificates or who are subject to an inadmissibility hearing — endorses the same positions that many other groups, most particularly the Canadian Council for Refugees, have brought forward. We are opposed to Bill C-3. We believe that the right to full answer and defence should not be abrogated when a person faces potential return to torture or extrajudicial execution or when they face detention.

I wanted to speak about an aspect of this law that has not been discussed either before a parliamentary committee or up until now before this committee, and that is section 86, which allows the Immigration Division or Immigration Appeal Division to use all the same powers as a Federal Court judge to hear secret evidence. Under Bill C-3, it is amended so that they get the special advocate, just like a Federal Court judge would. The difference is, first, a person hearing the case does not have to be a lawyer at all, merely an Immigration Division member or Immigration Appeal Division member. Second, they do not have the same security of tenure as a judge.

Ironically, you have a certain gradation of who can deal with secret evidence or national security litigation. You have the Immigration Division member who does not need to have ever gone to law school; you have all the provincial court and Federal Court judges, who cannot hear secret evidence cases; and then you have the designated Federal Court judges, selected by a Chief Justice who can. It is kind of like saying we have elementary school, high school and university; no one in high school can do this, but yes, elementary school can. There is a complete irrationality to this.

National security legislation, the law of privilege in determining whether something has to be privileged, is very complex. My experience, and our experience in hearings before the Immigration Division, is that it is just completely beyond the Immigration Division to deal with this. The rulings we get on procedure are patently absurd; they are the exact opposite of whatever the Federal Court says. There is a basic sense that they cannot stand up to CSIS. They do not have the security of tenure to be that courageous. They also do not have the legal expertise to get through these issues.

A fundamental problem with the inadmissibility hearings is that we are told that the reason we need to abrogate the Charter in the security certificate cases is that there is an allegation this person could be a danger to the Canadian public. However, in the inadmissibility hearings, all we are told is that this person is not a danger to the public, but they are not a person we desire in Canada because of their presumed association with some prohibited group.

If a case is going before the Immigration Division, it is specifically because a person is not a danger. If the person were a danger, there would be a security certificate. Even if you presume the concern in the security certificate was valid, which is hotly contested, ipso facto, if it is before the Immigration Division, it is because the person is not even alleged to be a threat to security. Yet we abrogate all of their rights under the Charter and, in the end, they will be subject to a potential return to torture. I do not see how section 86 can remotely be justified under the rationale of the government.

Ms. Doyon spoke earlier about the standard of evidence. It is a huge problem when you are dealing with an inadmissibility hearing and the standard of evidence is so low — reasonable grounds to believe that they ever did or do now or may in the future be part of one of these prohibited groups. It is actually even broader than that, because it can also be that a person was seen as subversive to some foreign government.

Because the standard of evidence is so low, you do not even need to be alleged to be a member of a group. You can be alleged to be someone who shares their views, who is accused simply of association and, therefore, by a kind of osmosis, a kind of legal membership, you are not really a member but considered a member.

A case where I am representing an individual who was charged would be an example. My client has a brother who is a member of FARC, a guerrilla group in Colombia. She was a member of the Communist party, which was a legal party in Colombia, and she was a trade union activist and a human rights activist. The allegations we received, this summary, says only that she is a communist, that the FARC is communist; therefore, that is kind of the same thing — it is an association. She has a brother in FARC; that is an association. She is a human rights activist, so she is critical of the Colombian government. So is FARC.

The analogy in Canada would be that you were a member of the Parti Québécois while the FLQ existed. You have a cousin or a brother who is in the FLQ; you are a separatist and they are separatists. We cannot prove you are a member of the FLQ, but so what.

The decision to commence a section 86 proceeding, an Immigration Division proceeding, is not made with the direct involvement of a minister. The security certificate at least has to be signed by a minister; this does not. It is just signed by a CBSA officer, and that can be a junior officer.

In our case, I wrote to CSIS and said, ``We would like to meet with you. My client would like to meet with you in my presence to discuss whatever your concerns are, because she is innocent.'' They refused to meet with us. Then we applied to the Federal Court to try to speed up the process of her being granted citizenship. The reprisal was that they went to a CBSA officer and got him to charge her, derailing the citizenship process. I asked the CBSA officer, ``Can we meet with you to disprove the allegations?'' He said no.

You do not get any kind of preliminary inquiry. You just get sent off. CSIS or the Department of Justice or immigration goes to a low-ranking official and says, ``Charge this person. We want you to.''

Then you are off to the races. You are locked into a litigation process that will take many years and cost hundreds of thousands of dollars. The person does not necessarily have the resources to be defended. If you are on welfare, you could get legal aid. If you are not on welfare, if you are earning any money, you do not qualify. For example, my client has a husband who is retired and gets a pension, so she does not qualify for legal aid.

The only thing that used to exist was Court Challenges. That program does not exist anymore. Now there is nothing. I am working for free and I will be working for free on this case maybe for 10 years. I do not know. We are in a cycle that is endless.

When the government comes up with legislation that is clearly contrary to what the Supreme Court said — because it does not even meet what SIRC used to give us — we are in a process of game playing. The litigation will keep going and going, and in the meantime, the injustices continue.

You asked Mr. Charkaoui about them changing their story, changing allegations. You asked whether, even if you got full answer and defence, they would not just come up with something else. I would submit that if the legal standard were not so low, and if there really were full answer and defence, if we really got all the evidence, they would not necessarily, because they would not be able to legally rationalize absurd concoctions of new allegations. Sometimes what you are really fighting is the government official not wanting to reveal something embarrassing.

I had a case that luckily was not under this legislation; it was before it. It took me two years to uncover a handwritten note in an immigrant's file from the director of security at CIC that just said: ``Lost the file. Tell the MP it is with the RCMP.'' From that, I figured out, being suspicious — and I do not think a special advocate would necessarily have figured it out — that they had lost the person's file for five years and so they pretended that there was a security concern. That was what was behind it.

I had another case where a person was not landed for 20 years. It is reported as John Doe in Federal Court. For 18 years, he never found out why he was not landed. Someone at immigration mistakenly or perhaps very generously disclosed to me that it was because an individual had phoned the day before he was to be landed and had said that the individual had done military training at a camp in Iraq. Eventually, we were able to show that it would have been completely impossible, not even remotely plausible. We finally got him his landing, but it took 20 years. More often, if we have all the evidence on the table, then we can resolve things.

Apart from the fact that the costs of defence are enormous and that it is virtually impossible to win, there is also the chilling effect of knowing that the scope of who will be caught up in this will expand. They started with security certificates and allegations that people belong to groups that might harm Canadians. They have moved on to a Columbian trade-unionist who is not alleged to be any threat to Canadians. They will go further and further as long as they can keep doing it. The impact on communities is chilling. You cannot talk about politics and you cannot criticize your government from your home country because that could expose you to all these risks.

In closing, we echo the words of other witnesses that Bill C-3 should be rejected. However, in amendment, we would suggest that proposed section 86 be repealed and that any proceedings that rely it be terminated.

Dania Majid, President, Arab Canadian Lawyers Association: Good afternoon. My presentation will be related to the presentations made by the previous panel. However, I will start my presentation with a story drawn from my work for the School Community Safety Advisory Panel in Toronto, where I looked at the vulnerabilities of racialized girls in school.

A 14-year-old girl was sexually assaulted by several boys in a high school bathroom. When the school administration learned of the incident, they did nothing. They did not contact the police or the girl's parents. They did not provide the proper supports, despite the fact that the school policy dictated they should do so. Why? Because the girl was Muslim, and they believed her parents would react violently towards her if they found out. This decision left the girl vulnerable in her school environment. Her classmates brutally harassed her, threatened her and propositioned her for sexual favours. The abuse became so intolerable that her father requested that she be removed to another school.

This story demonstrates the harm caused when stereotyping infiltrates decision making. It does not matter how well- intentioned the decision maker might be or the justness behind the decision. When stereotypes inform a decision, the objectives of the decision will be undermined.

We believe this continues to be the case with Bill C-3 and the security certificates regime. Bill C-3 is silent on the issues of systemic stereotyping and the flawed decision making that results. Despite the best efforts to fix the security certificates regime, if stereotyping is ignored, the regime will continue to cause undue personal and legal hardships for the people detained under it. This, in turn, does not make Canadians any more secure or security certificates any more constitutional.

Bill C-3 ignored the important lessons arising from the Arar inquiry. Mr. Arar's deportation to torture is a shocking example of how stereotyping affected security decision making and deemed a Canadian citizen to be a fanatical Arab Muslim terrorist. In his report, Justice O'Connor found that national security investigations create more of a potential for discriminatory profiling decisions than virtually any other type of criminal investigation.

Furthermore, the report warned that national security activities also lead to a considerable degree of state inquiry into political and religious beliefs and improperly target legitimate dissent. These findings are supported by the discovery that it was a coffee break with Mr. Amalki on a rainy day that triggered the RCMP to classify Mr. Arar as a person of interest and to alert customs officials. This profiling led to Mr. Arar's extraordinary rendition to Syria. Despite his public vindication in Canada, Mr. Arar still suffers from the trauma of this shameful action.

The report also stated that racial, ethnic and religious profiling practices emerge not from legislative direction but from administrative discretion and investigative practices. There are several places in the process where Bill C-3 allows for a judge to exercise discretion, which could be influenced by their biases or stereotypes or reliance on information provided to the judges that arise from racial profiling. This includes a judge's determination of whether a certificate is reasonable, or, in the review of the reasons for detention, the judge may also determine what secret evidence will form part of the summary provided to the named person.

The outcomes of these decisions have a serious impact on the named person's Charter rights, in particular as set out at section7 on the right to life, liberty and security of the person. We submit that the special advocate regime, as it stands, does not overcome the constitutional hurdle set out in Charkaoui v. Canada, namely because the process is highly secretive and does not provide for the person to know the entire case against him and, therefore, adequately challenge it. This is especially important in light of the possibility that the case may be based on profiling-tainted information.

It is the Arab Canadian Lawyers Association's preference to see the security certificate regime abolished and the Criminal Code used for security matters because the impact of security certificates on the men named under them vastly outweighs the security benefits that may be gained, if any. However, the Arar report provided several useful recommendations related to profiling and discrimination that could be extended to Bill C-3 or to any other security certificate alternative that the government may adopt.

Justice O'Connor stated that all aspects of national security investigations should pay appropriate attention to the human rights and interests of those who may be affected. Bill C-3 should include an explicit provision that decisions are not to be based on racial, ethnic or religious profiling. Concerned members of the Arab or Muslim community should be consulted in developing the precise definition of ``profiling.'' This definition should be widely distributed among decision makers and anti-terrorism investigators and should be accompanied by training on profiling and on interacting with Arab and Muslim communities. It is important that investigators as well as decision makers understand the religious, cultural and political context of the named person in order to assess what weight, if any, should be given to evidence and to avoid drawing any dubious conclusions from it. Furthermore, any review body or special advocate should have expertise in identifying discriminatory practices as well as the Charter and principles of fundamental justice.

In conclusion, until the roots of stereotyping and Charter violations are meaningfully acknowledged and understood in the security certificate system, band-aid solutions, such as Bill C-3, will do little to address the fundamental flaws outlined in Charkaoui v. Canada.

Paul Copeland, Lawyers' Rights Watch Canada: Senators, I do not envy you your role in this process. Many years after the use of security certificates was introduced in Canada, the Supreme Court of Canada said on February 23, 2007, that the procedure violated section 7 of the Charter. As you know, as it has been discussed today, the court, at paragraph 140, gave Parliament one year to amend the law.

On October 22, 2007, eight months after the court's decision, the government introduced Bill C-3. To a large extent, it was a rush through the committee process in the House. Last Wednesday, Bill C-3 passed the House and, on the same day, there was first reading in the Senate. Today, you have a totally jammed agenda. I am amazed that you are still awake in this process.

It is my respectful submission that leaving the Senate 12 days to consider this critically important bill is inappropriate and is an affront to the Canadian people. I want to read a brief portion from the Supreme Court of Canada decision in Suresh v. Canada. It is the overview in the factum of the Harkat case when we argued in the Supreme Court of Canada. I have asked that a copy be made available to you, but I will read it. It is not long. In Suresh, they talk about terrorism and whether he should be returned to Sri Lanka.

The court said:

The issues engage concerns and values fundamental to Canada and indeed the world. On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever- widening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to effectively meet this challenge.

On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society — liberty, the rule of law, and the principles of fundamental justice — values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament's challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments.

I am here today on behalf of Lawyers' Rights Watch Canada, and I have sent written material describing what we do. It is mainly a British Columbia-based organization. I happen to be on the board of directors, and I practice in Toronto.

I am here also because I am counsel for Mohamed Harkat and Hassan Almrei. I participated in a bail hearing for Mahmoud Jaballah. I argued the Harkat case in the Supreme Court of Canada. My CV was sent up to you. I will note also that, on behalf of Abdullah Almalki, I participated in the Arar inquiry and am now representing Mr. Almalki in the Iacobucci inquiry. I am immersed in these issues and have been in various aspects of national security since the late 1960s or early 1970s.

I have sent up some written submissions. It is only two pages and goes on for a grand total of nine paragraphs. The baseline of those submissions is that we believe that the bare-bones model of the special advocate is not Charter compliant. That has been repeated by almost everyone before you. I go through it in the submissions to you.

The Supreme Court of Canada said clearly that the security certificate process denies the person the opportunity of knowing the case they have to meet. The government, in that case, did not even attempt a section 1 justification. We still have the person in the situation that they will not know the case they have to meet. I do not think anyone has talked about that, and I do not think it was talked about before the Commons committee, either.

The question is whether what the government has put in Bill C-3 gets by the section 1 onus. You have to remember that the section 1 onus is on the government. We do not have to establish that it minimally impairs things. They have to present witnesses who in some way or other persuade initially a Federal Court judge that this model is adequate.

Communication between the special advocate and the person concerned is in your report that Mr. Mia referred to and that you talked about. The government does not have that in here at all. What the government is trying to do, in my respectful view, is to rush you into making decisions, probably today, in order that this legislation can be passed by February 23.

Comments have made before you that the government could apply for an extension. There was some discussion about whether people would consent to it. In the discussions that went on earlier last month, I, as counsel for Hassan Almrei, said that there is not a chance in the world we will consent to an extension. He has been in custody for more than six and a half years. He is the sole person remaining in Kingston Immigration Holding Centre. He is not out of custody because he has no family in Canada who can stay with him 24 hours a day.

What happens if either the government does not apply for an extension or they apply and do not get it? We arrive at February 24. The men are in a position to bring an application in the Federal Court to have their certificates quashed. I can tell you that I am planning to file an application and have it returnable for Mr. Almrei and Mr. Harkat for February 25. I assume that the certificate will be quashed, and when it is, you have five men — two of whom you have seen here today — regarded as threats to the security of Canada. I expect we have enough police, Canada Border Services Agency people and CSIS people in this country to monitor their behaviour. I assume the government will claim that they have to monitor their behaviour. They can monitor their behaviour for one or two months while you work on making sure that you amend this legislation in a fashion that makes it constitutional. You send it back over to the other side of this building and you tell them to do their job properly.

Mr. Dosanjh of the Liberals says, ``We do not like the bill very much. It is not perfect, but we will pass it.'' My respectful suggestion is that you should not do that; you should not participate in that process.

The last thing I will tell you is this: there are two people who have appeared before you today who are scheduled to go to the special advocate school next week. I am one of them. I think the process is flawed. I think the process will not work, but I have applied to be one. I do not know what I will do for my clients. I have had discussions with my clients about that issue — whether I will continue to represent them, if I ever make the security clearance, which is another distinct question.

If I make the security clearance and my clients say they want me as their special advocate, I have to drop out of the case as their counsel. Both of my clients have said, ``That is fine. We would rather have you in the secret hearing.''

I can tell you that for anyone to be able to do the special advocate work, they will need to do a lot of homework. All of these cases revolve around al Qaeda, the formation of al Qaeda, the fighting of the mujahedeen in Afghanistan, in Chechnya, in Tajikistan. Unless you have that history floating through your head regularly, you will never be able to function as a special advocate in this work.

As a result of work I have been doing for the last three and a half years, I have some knowledge and occasionally have had some success when, on the odd occasion, they have put a live witness before the court. I can tell you that they did not put a live witness before the court at all in regard to the Harkat hearing. The judge heard a live witness in secret and all that live witness did was explain to her why she could not give the information to us.

Those are my opening submissions.

Senator Jaffer: I have a question for all of you. All of you have said that Bill C-3 is not constitutional. According to this bill at the moment in front of us, the special advocate will meet with the person named before he or she sees any information. After that, some but not all information will be given to the special advocate. Then the special advocate can cross-examine any witnesses. If the special advocate wants to meet with the person named they have to get the court's permission. Is that your understanding as well?

Mr. Copeland: That is my understanding. I can tell you from my experience in litigation in these areas, I expect that the government lawyers will object every time the special advocate says he wants to go and meet the person.

Senator Jaffer: I understand from what people said earlier and from what the four of you have said that we need full disclosure and continuous contact with the client.

Mr. Copeland: It is not the client but the person concerned.

Senator Jaffer: The person named, sorry. What else do we need to make it constitutional?

Mr. Copeland: I think actually that the SIRC process probably worked better than this process. This is a very flawed model. There was some reference by Mr. Forcese about the circumstances in which this all arose. The British House of Lords said this process we have had in Canada is fine. The European Court of Human Rights in the Jahal case said ``No, it is not, and there is this great Canadian model,'' and totally misunderstood the Canadian model.

The British government enacted that and created the Special Immigration Appeals Commission and had a special advocate process. The British House of Commons in April 2005 made recommendations about how to improve it. The Blair government never adopted any of those recommendations.

When we were in the Supreme Court of Canada, Mr. Justice Binnie kept asking me, ``What kind of things need to be done?'' I said, ``It is not the court's decision; it is Parliament's decision.'' He asked me about what model I thought might work and I said, ``The special advocate model might work if it had all the amendments that the British House of Commons recommended.'' However, our government has produced none of those recommended improvements. I think the process is hopeless; I think the standard of proof is hopeless. It is a very difficult situation to try to figure out.

I did not mention in my notes that there are six security certificate cases: the five men of Arabic origin and Suresh is still floating around. We had a conference call with the Chief Justice of the Federal Court a couple of months ago to discuss the case. He asked whether there will be a constitutional challenge to this legislation. Every lawyer put up his or her hand. There is unanimity among the lawyers defending the six men that there will be a constitutional challenge to this legislation, and we think we will win that challenge. It will take us three years to win it. You heard the terms today. I had to get a special order on Friday to get Mr. Harkat here so that he could testify.

Senator Jaffer: We are talking about the special advocate. I would like to hear from the three of you as to whether attributes of the SIRC model would help in this process.

Mr. Boulakia: With respect to the SIRC model, we are talking about ameliorating an injustice. It is certainly not what I consider to be ideal.

Attributes of the SIRC model or adopting the SIRC model are the minimum to answer the question the Supreme Court justices asked the Department of Justice lawyers, which is, if we already had A, B, C, D, E and F with SIRC, how can you justify that we cannot have that at minimum? The Supreme Court was not saying that SIRC is ideal or that SIRC necessarily met the Charter. They were saying that if you had it already, why can you not have it now. If you do not adopt everything that SIRC had, you are basically going back to the same question you were asked in the Supreme Court, and I think you are guaranteed to lose.

Adopting what SIRC had is, I think, the minimum to even say to the court, ``At least we are giving people back what they used to have.'' It will not necessarily end the Charter challenges. You still have the problem of the standard of proof, which is highly problematic. You will continue to have a challenge to not having full answer and defence, not having the person accused get access to all the evidence that is put before him or her.

Regarding reliance on claims of privilege, such as international relations privilege, if my client is from Colombia, we know that the government of Colombia fabricates evidence. The Colombian courts have found that there are informants paid to make up stories about people. We know they are completely unreliable. Yet if we say that we want to know if the Colombian government is behind any of the allegations against my client, we are told, ``No, international relations are privileged so you cannot be told anything.''

There are so many aspects of secrecy that will be challenged over the years. It will take many years to get to each issue. The Supreme Court starts with the easiest issue, which is that you are not doing what you used to do with SIRC; go back to the drawing board, and then we will come back with the next issue. Ultimately, lawyers should be striving for full disclosure to the accused of all the evidence, because the accused is the person who is best placed to be able to answer it. She knows who the people are. She can put things into context. She can dot the i's and cross the t's.

To give you again an example from my case, in Colombia my client's sister was accused of running a safe house for terrorists and channelling money to what the government alleges is a terrorist organization, the FARC, whether or not they are terrorists. In Colombia there is a requirement to disclose all the information to her, at a preliminary hearing, before even being charged and going to trial. They had all this bank account information from her bank account and the account of the cooperative housing project that she ran. It showed various deposits that were questionable. They said, ``That is proof that you must have got your money from the FARC.'' They were able to prove that it was innocent, that all the money had come from schoolteachers who had contributed to this housing project, and were able to get it thrown out. However, if it were a secret trial and you just have a special advocate who does not know your whole personal circumstance and all your contact and does not have solicitor-client privilege with you, the special advocate would be faced with the evidence of all these suspicious financial transactions. The government says it is for FARC. What will the special advocate do about that? The person needs to know the case against him or her to be able to meet it.

Senator Jaffer: Ms. Majid, do you want to add anything?

Ms. Majid: Hearing the testimony that came out in the earlier panel, if you see the profiling that was done on Mr. Charkaoui, the only differences between me and Mr. Charkaoui are that I am not married and I was born in Canada.

We must understand that the flaws of this current system stem from the role that stereotyping and racial profiling plays in creating the cases against those detained. Unless we address that in this system or in a different model, every model that is proposed will fail. Presumably this current model could work if there were safeguards in place against racial profiling, or if racial profiling was prohibited and we actually had to use real, concrete evidence. The point is that that is not the case. Bill C-3 does not do anything to rectify it. With this model, the SIRC model or any other future model that is proposed, if there are not safeguards against racial profiling and stereotypes, we will see these problems occur because this tainted evidence will be used to create false cases against innocent people.

Mr. Mia: I will try to be succinct and follow up on what Mr. Boulakia was talking about. We can rank these as our choices of what is best. As I said in my opening statement, the legal logic is rigorous and it leads you to only one conclusion: this cannot stand.

You have the Anti-terrorism Act. I have my complaints about it but it is a better process than this. You had protections for national security information. It is not like we have nothing else on the books to protect national security. We have better means to do that under the Anti-terrorism Act, through the Canada Evidence Act, and it applies to the anti-terrorism provisions in the Criminal Code. You know there are Canadian citizens charged under the Anti-terrorism Act today.

How can those people pose a lesser threat that Mr. Charkaoui, Mr. Harkat or the others? It does not stand. The allegations are similar and, to some extent, the allegations against these men are untested, which is what we have heard.

I will go back to your report. I do not want to plagiarise so I will read it back to you. It is an excellent report, as I said. The standard you set is that we all realize that national security information needs to be protected. On page 103 of your report, at the bottom, speaking about national security information, you write:

We also recognize that there is a justification in treating matters that involve Canada's national security differently from those that do not. However, this does not mean that the procedure surrounding the detention of a non-citizen on the basis of a security certificate should not be as fair and just as possible. Departures, in the interests of national security or the fight against terrorism, from full adherence to the usual principles of fundamental justice and due process should be as minimal as they can be in the circumstances.

That leads me to the point of what Madam Justice McLachlin has stated. She has laid out that you need a substantial substitute. We ran the test of the old security certificate regime against fundamental justice: violation, yes. What is the next the point? Minimal impairment, the Oakes test — Senator Joyal talked about that. It failed on that. That is what you are talking about here. When you have these measures, you need to minimally impair. This bill does not minimally impair.

This bill, I would say, is the worst option you have. The best option is to scrap this whole thing and let all of this be dealt with under the anti-terrorism provisions in the Criminal Code.

Your second best option is to improve this legislation, as many of the witnesses have said. Regarding the SIRC model, I will not get caught up in branding. Whatever it is, the special advocate needs to be robust to fulfil what Madam Justice McLachlin said, that the substantial substitute to full answer and defence is knowing the case against you and answering.

I was sitting in the back here when Minister Day bogeymanned us all by telling us that these guys are not jaywalkers, that they are learning the black arts of al Qaeda in training camps. That is easy for him to say. I will speak on behalf of the men. We would like an opportunity to discount those allegations. He could tell you I have horns and a tail, but I cannot discount that. I cannot rebut his claims. That is the problem with this system. It is like a little guy like me going handcuffed 15 rounds with Mike Tyson. You will not win. The absurdity is that as soon as you do start to win, they change the game; they change the rules on you.

These guys hold all the cards. For the sake of this country, we need oversight. The bigger picture is what Justice O'Connor has said; sure, we need national security intelligence in this world, but we need it under oversight or you will get mistakes.

We had Project Thread; we can talk a bit about how that was a big bungle. We have Omar Khadr who is in Guantanamo Bay. It is a shame Canada does not do anything about a Canadian citizen in this ``black hole of the legal system,'' as the House of Lords has called it.

Effectively, we have found out now that this is how secret evidence works, if we want to see a real example. They have just mistakenly leaked secret evidence, which they would not disclose, that Mr. Khadr was probably shot in the back. The United States government was embarrassed and it was not disclosed. Now that cat is out of the bag.

We see this over and over. We saw it with Mr. Arar and with Mr. Ahmad Abou El Maati. Endlessly, over and over again, CSIS will obviously institutionalize inertia; you make a mistake and you want to cover it up. The problem is that the tools they have to cover these things up are pretty treacherous and can destroy people's lives.

Senator Nolin: I have one question for Mr. Mia, who raised the question of discrimination. Chief Justice McLachlin also talks about that in paragraph 4 of her decision. What is your take on what she decided then, namely that the Charter refers to inequality between citizens and non-citizens in section 6? Do you want to argue with her?

Mr. Mia: I will probably lose in an argument with her, but I beg to differ on the analysis. As lawyers, we can differ. She is on the Supreme Court so her word stands; and that is why I am giving you amendments.

We need to be careful, looking at the analysis. Yes, there are distinctions between citizens and non-citizens with respect to whether you have a right to be in this country or not. Non-citizens do not have a right to be in this country; Chiarelli decided that. However, I think that case is misused in the sense that now in security certificates we are saying you do not have a right to be here, so you do not have a right to fundamental justice and due process. That is wrong.

Madam Justice Wilson, in the Singh case in the late-1980s, referred to section 7? That section does not say that every citizen has the right to fundamental justice; it says everyone, every single person.

You do not have a right to be here; but in the process of getting you out of this country, we have to play by the book. It is a misreading to say you do not have a right to be here so we can use any process, including an unjust one, to get rid of you. We can get rid of you, but you have to be treated the same as every other person. It is bald on its face that there cannot be any distinction.

Section 6 — you have voting rights, certainly. Those are distinctions between citizens and non-citizens. Citizens vote; non-citizens do not vote. Those are justifiable distinctions, and the right to be here or not is a justifiable distinction. However, regarding due process, fundamentally in the International Covenant on Civil and Political Rights and other international instruments — and the Charter borrows from that — there is no distinction on status.

Senator Nolin: Mr. Copeland, you referred to your long experience, and we have your résumé. Before 2002, I understand the certificates were going through the actual SIRC process.

Mr. Copeland: That was for permanent residence. I did one of those cases.

Senator Nolin: That is my question, because we have entertained the argument today from your colleague, Mr. Cameron. You probably heard him.

Mr. Copeland: Yes, I heard most of what he said.

Senator Nolin: Considering your experience and minimal infringement — the Oakes test being kept in mind — that is maybe the alternative that the Chief Justice is pointing out to us.

Mr. Copeland: It is certainly one of the alternatives that they looked at. None of us doing this work understands how, when the Immigration and Refugee Protection Act came into effect, it was decided to take the cases away from SIRC. I have never seen anything in any of the parliamentary discussions.

We all think they were losing cases before SIRC so they just changed the legislation and went off to the Federal Court. We have been doing a long job of trying to educate the Federal Court judges in regard to how to evaluate the evidence. The people on SIRC got a little more sophisticated about evaluating the evidence and sometimes did not take what CSIS put before them.

Senator Nolin: Mr. Cameron and his colleague are proposing a mix of both. Keep the Federal Court judge and bring in the SIRC process.

Mr. Copeland: I do not see that there is a huge difference between that and a special advocate — three who are specialized people and doing only this. I am not sure SIRC is the correct model, because they are part-time people. I do not think they signed on to do quite the amount of work that will be required in this.

Senator Nolin: The minister said that, as a matter of policy, they do not want the perception of conflict of interest.

Mr. Copeland: I think an oversight body overseeing CSIS would be a wonderful group to try to evaluate what CSIS is putting before them. The question has been raised here a couple of times about the competence of the agencies.

I have never seen any of the secret evidence. From what I see occasionally when they have brought people before the courts, usually in detention review, and from what I have seen around the Arar inquiry and what happened to my client, Abdullah Almalki, I have grave concerns about the competence of both agencies. I wish someone in the House of Commons or in the Senate would look at that issue. It is an important issue to deal with, but it is not the issue of the day here.

A special advocate model, as amended according to what the House of Commons in Britain recommended, I think would come pretty close to doing the job of minimally impairing the right of the person to have a fair hearing.

We recognized in the Supreme Court of Canada that there are national security reasons for withholding information. In Harkat — and you will see it in the factum if you look at it — we actually applied to have an amicus curiae appointed. That was the first thing we did when I came on the case. We applied to have John Laskin, who is now counsel of the Iacobucci inquiry, to be appointed as an amicus so that there would be someone inside testing the evidence. The government resisted it fiercely.

I believe Justice Dawson did so for two reasons. First, she said it was not needed, that she could do it herself; and second, it would cause a whole lot more delay to bring the amicus up to speed. Therefore, she denied us the request to have the amicus appointed.

I would not have been in the Supreme Court of Canada arguing the case if we had ever had an amicus appointed. I probably still would have lost the reasonableness hearing for Mr. Harkat, but that is what we were looking for.

Senator Baker: I have only one question but I would like to give a short preamble to that question.

First, I hope that Mr. Copeland does get the position of special advocate. He would deserve it after all the years that he has argued these questions and gone to the Federal Court of Appeal, trying to get disclosure from CSIS; arguing the 120-day delay before the Federal Court at the same time as he was arguing it before the Supreme Court of Canada. I think he would be a great special advocate.

Mr. Copeland: Does your support jinx me?

Senator Baker: I do not think my support would go very far in getting him there, that is true.

Mr. Copeland mentioned that in his opinion this bill did not go toward addressing the decision of the Supreme Court of Canada that the person would know the case they have to meet.

I want to ask Mr. Mia this question, because he suggested the same thing in his presentation. He said that we should have the Stinchcombe test, which comes from the 1991 R. v. Stinchcombe case involving a law firm and disclosure requirements. He then said that even derivative evidence is to be disclosed, which involves another Supreme Court of Canada decision in British Columbia Securities Commission v. Branch.

He then mentioned one other Supreme Court of Canada decision, Suresh, which he said was wrongly decided. I presume that is because the Supreme Court of Canada had said, barring extraordinary circumstances, the deportation of a person to a country of torture would violate section 7 of the Charter, fundamental rights.

However, Suresh — I think at paragraphs 122 and 123, if memory serves me correctly — was referenced by the Supreme Court of Canada in the decision that we are talking about here with this bill. At paragraph 123 in Suresh v. Canada, the Supreme Court of Canada said that not only must the person be informed of the case to be met if they are being deported to a country where they might face torture, but also the person must be given an opportunity to challenge the information of the minister where issues arise as to its validity. The person must be able to cross-examine the minister on the information that grounded the ministerial certificate.

My question to you is quite simple: How would you have the Stinchcombe standard of disclosure in which not only is the Crown's case disclosed but all information that could be of assistance to the person being investigated or the person charged and all derivative information must also be disclosed, as you pointed out, because of another Supreme Court of Canada decision? Are you saying that should be the standard and let the process then follow its course after that as to the exclusion of things that might contravene national security or national interest? Would you suggest a blackening out of special information as under section 487.3 of the Criminal Code? How are you suggesting encapsulating the requirements of Stinchcombe with the requirements of this bill?

Mr. Mia: If I may clarify the derivative point, when we are prohibiting torture-derived evidence, I want to capture also derivative evidence of torture. If I torture and then they find something else, then that becomes the slippery slope because it is not only impractical but also immoral. If we do not nip the fruits of the poison tree, they will continually torture people because they will get it through derivatives.

In the Stinchcombe case, I am looking at the principle that the Crown must disclose all of the relevant evidence in its possession because, in that decision, the court said that this is not the property of the Crown but that it is the property of this country, and we need to serve the interests of justice. Therefore, the evidence needs to be disclosed to the defence to make their case.

If we take the special advocate road, then we need to change this bill. I do not know whether Minister Day read the bill incorrectly or has been misinformed, but I believe he told the committee this afternoon that all of the evidence is disclosed, and that is patently incorrect.

Senator Baker: Yes, he did tell us that.

Mr. Mia: The bill says that everything that the minister has put before the judge will be disclosed to the special advocate. That is not everything. As you know, I will collect my piles of evidence and this pile says that the person is a bad dude and this other pile says that maybe he is not. We have heard evidence about what pictures were found on Mr. Almrei's computer. God knows what is in the temporary cash on my computer. That is the information they will hold back from the judge and keep in their file.

Senator Baker: Under the Stinchcombe principle, they will not only have to disclose what the Crown, CSIS and other authorities are using but also all information in their possession that could be of relevance to the case.

Mr. Mia: Exactly. That would include exculpatory information and other things. That special advocate model is under the tent of confidentiality, so there should be no problem disclosing that information. Time and again we see that CSIS picks and chooses. Mr. Charkaoui just told the committee that they have had interviews, et cetera, created a file and destroyed the root evidence. If I am drafting the material, I will put a particular spin on it. As Ms. Majid said, there might be some kind of bias involved in how I characterize evidence. It would be important for the special advocate to truly play the role, as Justice McLachlin said, of a substantial substitute for being there to fight for you.

I would not apply for the special advocate job, and I probably would not get it if I did apply. If I were a special advocate, I would want to see everything, because when reading through some of the excluded evidence, you might find areas of the case that are weak. Disclosing such evidence would fall under the Stinchcombe case.

The Suresh case was decided after 9/11.

Senator Baker: It was in 2002.

Mr. Mia: That impacted their decision making. It was a mistake, and now we have federal Crown attorneys arguing that people should be deported to face torture in some circumstances. That is a slippery slope because it is insidious. We have signed the UN Convention against Torture. We are bound by international customary law and peremptory norms of law that we do not torture. Those are basically the morals of law. The court probably has made this mistake. This is where Parliament can sometimes change that conversation and the Senate can lead by shutting that door.

Senator Baker: In other words, barring extraordinary circumstances —

Mr. Mia: ``Under no circumstances will we deport people to torture,'' is what I said.

Senator Baker: That is interpreted to mean that it is possible in the normal case. It is extraordinary. Mr. Copeland will be a great special advocate if he is the one asking for disclosure because he has been trying to get it for years.

Mr. Mia: He can hire me as his junior.

Mr. Copeland: With regard to the minister's delegate's decision for these men, every minister's delegate has agreed with the recommendation of the ministry that the person should be sent back home to their home country, notwithstanding serious evidence of torture. The only evidence overturned was for Mahmoud Jaballah, and the court said that he could not be sent back to Egypt. Not one minister's delegate has found that the risk of torture outweighs the dangerousness of the person. We have been saying that it is a total rubber stamp. They send the material to the minister's delegate who says, ``Ship him home.'' We need someone new making the decision, if nothing else. I agree with Mr. Mia that we should not have that discretion.

Senator Day: Mr. Copeland, the more of a political hot potato this issue becomes, the more the government would like to ship them back to where they are from in order to avoid the problem.

Mr. Copeland: I am sure the government or CSIS would be happy to ship them back without a hearing. We have standards in Canada that make us, occasionally at least, the envy of the world with regard to our justice system and the way we treat people and try to give fundamental justice to people. Yes, I am sure the government wants them out, and I am sure CSIS wants them out. However, in my view, that is not the Canadian way of doing things, at least I hope that is not the Canadian way of doing things.

Senator Day: Mr. Mia, during your presentation, you made a point that I took note of. You said that you believe the government has decided that the special advocate will be a lawyer. I read the relevant proposed section 85(1), which simply says ``a list of persons who may act as special advocates;'' it does not say ``persons learned in the law.''

Mr. Mia: I believe that is buried in there somewhere. If I am mistaken, I will take it back and add my comment that it be a lawyer. I thought I read somewhere in the regulations that the special advocate had to be called to the bar. I can find it for you and flag it.

Senator Day: When you find it could you let me know? I would be interested in that.

Mr. Copeland, you indicated that you had applied. Is there a letter out that asks for applications?

Mr. Copeland: I received it from Mr. Boulakia, who forwarded it to some people via the Internet. It was distributed around fairly widely, but I do not know how widely. The newspaper reports indicate that there were about 50 applicants. A notification was sent out the week before last to the people who had expressed an interest in applying to tell them that February 4 was the deadline and three photographs are required. They did it with a mass email, so I know who applied. You talk about national security — there is a list of about 30 or 40 names. I know a number of the people who applied. I tried to find out who was invited to the school next week but they would not tell me.

Senator Day: You have to go to school to learn.

Mr. Copeland: That is the plan. Mr. Waldman told me today that you have to be security cleared before you go to the school. I do not know whether they can security clear me within a week.

Mr. Mia: In response to the earlier question, it is proposed section 87.2(2).

Senator Day: Thank you. Were there other qualifications apart from being qualified to practise law?

Mr. Copeland: Not on the application. There was a security certificate clearance application and another, shorter application to apply for the job. You had to list three references. They did not ask what experience you had had in those areas. I sent along some other material. There was an affidavit used in the federal court recently that described my national security clearance, so that went along with the application.

Senator Day: Hopefully you sent along the resume that we have of the work that you have done as well.

Mr. Copeland: I have two resumes. That is the clean one.

Senator Day: Mr. Boulakia, I was trying to follow your concerns about section 86, which is when the minister decides to make an application for non-disclosure of certain information in a immigration hearing or process.

Mr. Boulakia: Yes.

Senator Day: You explained the difference. I note in proposed section 86 that the judge, if he feels it appropriate, can appoint a special advocate in that instance as well.

Could you briefly explain your concerns with respect to the process now that we have the possibility, at least? Also, is it the discretion of appointing a special advocate that concerns you and the fact that it is not as a right?

Mr. Boulakia: No, that is not my concern. My concern is that the decision maker is not qualified to be dealing with this area of the law. It is not very helpful to say, ``We will have someone who has no training, no knowledge of this area of law, who will be the decision maker. We will appoint a special advocate who will get to make pleadings and request things from him, such having access to information.''

Essentially, the special advocate will be more qualified than the decision maker.

Senator Day: Given the qualifications of the special advocate, do you not think the special advocate would lead the decision maker in the right direction?

Mr. Boulakia: The decision maker does not have the security of tenure of a judge. Thus the decision maker is put in the position of asking him or herself: Do I want to fight CSIS on the special advocate's advice, or do I want to back off?

My experience has been that he or she will back off. There is not a single procedural motion that I brought before the Immigration Division that was accepted. Anything I suggested or asked for would be rejected.

Senator Day: I heard you say that earlier. I was wondering if you felt that some of your concerns with respect to evidence that the minister does not want released were being addressed by having the special advocate in the process. In other words, would the special advocate allay some of your concerns? I guess you are saying that you still have those concerns.

Mr. Boulakia: Yes, I still have those concerns. You also have the standard of proof. More fundamentally, and perhaps I did not communicate this clearly, this process infringes on the right to full answer and defence. The justification is that the person accused is a danger to Canadian society. However, in all these section 86 cases, that is actually not being alleged. There is no allegation that we need to lock this person up because he is a danger. Therefore, why embark on the whole debate?

Senator Day: My final question is to Mr. Copeland. Mr. Waldman and Mr. Forcese gave us a number of proposed amendments to Bill C-3, particularly related to full disclosure to the special advocate.

You indicated that all five or six counsel acting for those who are subject to a certificate at this time met. There are at least five detainees.

Mr. Copeland: We had counsel for Mr. Suresh there as well.

Senator Day: Six.

Mr. Copeland: They are all the same counsel. There are only about four of us doing this.

Senator Day: Would they all be challenging the legislation?

Mr. Copeland: Yes.

Senator Day: They are challenging Bill C-3 as it is. Would that be on the basis of a section 1 Charter challenge because there is not the provision for full disclosure?

Mr. Copeland: That is one of the aspects of the minimal impairment. Again, the onus is on the government to persuade a court — initially a Federal Court judge — that this legislation does not minimally impair the right to fundamental justice. I do not know what evidence they will present on that. It would probably be useful for you to have asked Minister Day what evidence they intend to produce.

I do not have it out here, but I expect we will file in reply the bundle of material that was commissioned for the Federal Court, done by Mr. Waldman and Mr. Forcese. We will say it still does not comply with fundamental justice because you are not minimally impairing the right to know the case you have to meet and not minimally impairing the person's right to defend themselves.

Senator Day: If there were full disclosure to the special advocate, would that, in your view, go a long way to meeting the impairment?

Mr. Copeland: It would help.

Senator Day: That is not the fundamental problem, then?

Mr. Copeland: That is certainly one of the fundamental problems. Another one of the fundamental problems is the restriction on the special advocate's going back and forth. I did a couple of SIRC hearings and I can tell you there was communication that went back and forth. We got some limited disclosure in those cases of what was being done in camera.

I did the first case before SIRC in 1984, another in 1988 and we got to the Federal Court of Appeal in 1999 on that. It was a slow appeal. Both clients are still here, even though I lost both cases.

There are a number of factors. I think the limited, bare-bones model of the special advocate does not meet the section 1 justification. The disclosure issue is critical because there is significant withholding of evidence. The destruction of the original interviews is a major problem.

There is the issue of evidence obtained by torture. That was one of the issues we raised in 2004 when we were litigating Harkat. Abu Zubaida was in a black site at that point; now he is in Guantanamo. I approached the Americans to see if someone can interview him. I have approached John Sims, Deputy Minister of Justice, asking what Canada will do to help me get to interview him. It took Mr. Sims seven months to respond to that letter. We are still having a one-sided correspondence with me stating that my client will be denied fundamental justice if someone does not get to talk to Abu Zubaida and find out whether Abu Zubaida says he does not know who my client is and never had any dealings with him.

The Chair: Senator Joyal is the last questioner on this panel. We have two more panels. That said, we do need to go in camera and discuss some things at some point.

Senator Joyal: Mr. Copeland and Mr. Mia, when you talked about the capacity to cross-examine and have access to the person who is the object of the certificate, you referred to paragraph 83 of the decision in the Charkaoui case, which I quoted to the minister when he was here earlier. It referred to the April 2005 British House of Commons Constitutional Affairs Committee. Paragraph 83 reads:

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; (2) they lack the resources of an ordinary legal team, for the purpose of conducting in secret a full defence; and (3) they have no power to call witnesses (para. 52).

Mr. Copeland: It is encapsulated in that and in the House of Commons report from April 2005. I have a copy here that I can leave with you.

Senator Joyal: That is the main point on which you would argue in any challenge in court: that what the court has already identified as an essential element of a fair procedure is not met by Bill C-3.

Mr. Copeland: Yes, absolutely.

Senator Joyal: My substantial question based on the evolution of our discussions this afternoon relates to section 1 of the Charter. The way the Supreme Court has structured its decisions is always to ask whether a breach or violation of a particular section of the Charter is saved by the section 1 provisions. We can apply the Oakes test to the issue with the following three questions, which you all know well. First, what is the objective of this legislation? Second, what are the means achieved or used by the legislator to meet that objective? Third, is it minimal impairment?

It seems to me that on the first issue, the objective of this legislation, there is a fundamental failure on the basis of the definition of what constitutes terrorism activity within the Criminal Code and within CSIS legislation. As long as we maintain the definition in section 83.01(1)(b)(i)(A) of the Criminal Code — an act or omission, in or outside Canada, that is committed in whole or in part for a political, religious, or ideological purpose, objective or cause — you will fish very broadly and you will catch people like Mr. Charkaoui. The presumption that Mr. Charkaoui may have done something for a political cause or a religious cause or an ideological objective qualifies him for an investigation or an allegation that he might represent a threat to national security. The same is true with the Canadian Security Intelligence Service Act in section 2 on the definitions of the act.

If we are to address fundamentally a fair operation of any system that would allow a foreigner or a permanent resident the capacity to defend him or herself in such a procedure, we have first to address the kind of action that is subject to an investigation. An investigation should be for the right purpose. Opening the purpose widely by including ideological, religious or political motive or objective puts everyone in the swimming pool.

Mr. Copeland: That is a distinct possibility.

Senator Joyal: Senator Baker has already stated that the Supreme Court of Ontario has thrown out the definition of terrorism, and the Court of Appeal has refused to hear it. Therefore, it is res judicata, as far as I am concerned. Hence, the first attack of this legislation would be on the basis that it serves a purpose that has been found to be unconstitutional or illegal in previous court decisions. Am I stretching this reasoning too far?

Mr. Copeland: I would be happy to have you come along, and you can argue that section of it.

A problem exists in the definitions of terrorism. There is no question about that. I have never known the facts sufficiently to be able even to make the argument. However, it may be something we take forward to the court in the constitutional challenge. Mr. Justice Rutherford's decision in Khawaja certainly leaves that argument open.

Senator Joyal: To go before a judge and say, ``According to the evidence we have mounted, this person poses a threat to our security,'' forces the judge to interpret the proof in front of him in relation to an allegation of wrongdoing. It could be anything within the scope of the definition — political, ideological or religious purpose — that is acknowledged to be too wide. If we are to establish the principle of fundamental justice, it would be because the objective, the security that we are seeking, is a security that does not have that ideological content that the court has already stated should not be considered in the definition or in the way that we discharge national security in Canada.

Mr. Copeland: That may be. In Mr. Harkat's and Mr. Almrei's cases, they link them to al Qaeda. I have conceded in every proceeding I have been in that al Qaeda qualifies as a terrorist organization, so if they link the person to al Qaeda, the definition may not matter. It depends on the facts of the case whether you get into that issue or not.

Senator Joyal: I understand that. However, from the testimony we heard this afternoon from Mr. Charkaoui, he has not been a card-carrying member of al Qaeda. They might have found images on his computer of Osama bin Laden, but anyone watching the news via Internet would have images of bin Laden or other terrorist leaders.

Mr. Copeland: That is Mr. Almrei.

Senator Joyal: Yes. It is important that this legislation be accompanied by amendments to the Criminal Code and to the CSIS act that would entrench a definition of national security that we should be assuming or discharging in this country and not one that opens the door to almost anything.

Mr. Copeland: I agree with you on that. However, I would urge you not to pass this legislation. It is not necessary for you to pass it this week. As Mr. Mia said, the sky will not fall. Canada will have to watch five men. It is better that we work on getting the legislation right than get railroaded into passing legislation that is flawed, inadequate and not up to Canadian standards.

The Chair: We now have, from the Muslim Council of Montreal, Mr. Salam Elmenyawi. I understand he needs to leave, so we will hear from him first. The other two members of the panel are Mr. Sameer Zuberi, from the Canadian Council on American-Islamic Relations, and Mr. James Kafieh, the legal advisor of the Canadian Arab Federation.

Salam Elmenyawi, Muslim Council of Montreal: Mr. Chair and members of the committee, on behalf of myself and the Muslim Council of Montreal, I wish to thank you for hearing my comments in relation to the security certificate bill.

The founders of our nation had the wisdom to ensure that the Senate is not an elected body, to ensure that this body, which has wise people with experience, will come together to protect Canadian values, fundamental freedoms and the Canadian Constitution without intimidation, without fear of elections and without fear of abuse by anyone. This is an oversight body and it is important for it to ensure that those Canadian values and our Canadian Constitution are protected.

I have been told by many that this bill will be rubber-stamped through the Senate and will go back to Parliament, that the maximum would be small changes here and there just for the sake of doing so. I am here today because I do not believe that. I believe that Canadian values and our democratic process are much more important than all this talk outside and the pressure that you are facing today, including the fact that you have to stay all day today to hear all the witnesses in one day. I thank you for that. It is great for you to be able to stand up, but we hope that this bill will be looked at in a good and fair way.

The security certificate bill, even after the changes, is a flawed bill. Many of the witnesses you have heard from today have made it clear that the bill is certainly flawed. It has many errors that must be changed in order for it to respect the Canadian Charter of Rights and Freedoms.

Global terrorism must be fought, but we must make it clear that secret court hearings, undisclosed evidence, indefinite detention and deportation to torture are not part of the fight against terrorism. These acts are, themselves, a threat to our safety and are an attack on our freedom.

The implementation of the special advocate to defend the accused behind closed doors without the defendant's knowledge of the evidence would be in breach of the right to a fair hearing. As stated in the Supreme Court judgment, it prevents the accused from contradicting errors, identifying omissions that challenge the credibility of the informants or refuting false allegations.

Adding the special advocate as a fix to such a flawed process would be nothing more than a fig leaf to cover up the lack of fundamental justice. Furthermore, Chief Justice Beverley McLachlin wrote in the judgment that:

The right to a fair hearing comprises the right to a hearing before an independent and impartial magistrate who must decide on the facts and the law, the right to know the case put against one, and the right to answer that case.

National security is a matter that concerns us all. However, the rule of law is the bedrock of our society and the foundation of our democracy. We cannot stay silent when fundamental justice is abandoned and when the rule of law is ignored.

I understand this bill was voted for in Parliament. I know that Mr. Ujjal Dosanjh has said that we will hold our noses and pass the bill because it is important. However, holding our noses and passing the bill is evidence beyond a reasonable doubt — which is something none of the accused will face — that this bill stinks. If we have to hold our noses because the bill stinks, that is enough for us to know that this bill is not good and should not pass.

I have four points that I would like to relate that come specifically from my relationship with our community.

First, this bill, as it stands today, is a threat to our national security. Why? The bill already has a bad name. We all know now that the same MPs who voted for it said it stinks. Canadian Muslims, as part of this Canadian society, understand very well that this bill is a very bad bill. It is unfair: there is no way for anyone to be able defend themselves against such a bill and against such a process.

We also know that most of the evidence that is produced under this law is either newspaper clippings or reports made by CSIS agents who would have to judge a Muslim not knowing Islam and Muslim culture. Instead, they sit on the other side and judge whether these behaviours are extreme or reasonable or what kind of behaviour it is; then they pass on their own report or summary without contextualization of the issues and the facts that they put in front of the people.

Most Canadians today are aware of this, so what would that do? It would certainly dissuade many of those who are willing to come freely and talk to our security agents to let them know if they have suspicions about anyone. This bill will ensure that they will not do that because they know that these people will face an unfair process if they come forward and speak about them.

I see this bill as a threat to our national security because it will prevent cooperation from the Muslim community. This bill specifically and disproportionately targets the Muslim community. Therefore, Muslims would look at it as being a flawed bill, as institutionalizing racism and discrimination against the Muslim community. They will be unable to communicate or work with those institutions that support such a bill.

The bill must be fixed; otherwise, it will take away from that self-policing, which is more important than having one policeman over each and every Muslim in the country.

I am not kidding by saying that. The CSIS principles that were outlined in an intelligence briefing on radicalization and the jihad in the West that was given to the Prime Minister, dated June 20, 2006, talk about radicalization. Specifically, the briefing asserts that all the Muslim community is a source of this kind of radicalization and they are targeted.

They are not looking at terrorism but at extremism, which is not even defined. Terrorism itself is not defined, yet alone extremism. That is the mindset, the culture that CSIS agents are acting on today. That is serious, and this is an important point to examine.

Second, the standard of proof and the rule of evidence, in this case, are very low. We are not talking here about proving beyond a reasonable doubt or proving it under the balance of probability. We are talking about reasonable suspicion.

Reasonable suspicion goes to about 12.5 per cent of the evidence in front of the court. I think you can raise suspicion about anyone at any time. Therefore, no one in the world who uses those criteria would be able to cancel the security certificate in front of them. That is simple and straightforward. There is no fairness, it is very clear, in the process as it stands right now.

Of course, there is also the fact that most of this evidence comes from other countries, coming through torture and through foreign evidence. Then we say there is a clause that talks about torture. Yes, but we do not know all the circumstances around the collection of this evidence, so how can we judge if it is torture?

Did we define torture? That bill does not. Mr. Bush said that they do not torture, but his own agent said that they do waterboarding. Others say that that is not torture, but the United Nations says it is torture. Is there a definition of what is torture? There is no such thing in this bill.

So, too, there is no definition for terrorism, or extremism, or for what constitutes danger to our country from these people that you apply the security certificate against.

Using this type of evidence is backbiting, like in school. They come to you here and say we will tell you, but tell no one. They say we will trust you, talk to you and then they poison your mind and the atmosphere with all kinds of false information or information out of context. Then they tell you, if you do not pass this bill, Canada will be in real and serious danger, so we have no choice. There is no way in the world for you to check even the information they are supplying to you. There is no way that you can challenge what they are saying because you are not the accused.

The third point is the special advocate. The special advocate is only the name we take. They use the name that was proposed by the Senate committee as a special advocate — the same as with all the other names, like the words ``torture,'' ``terrorism'' and ``extremism.''

We come and use a special advocate, but there is no content under special advocate by itself. There is nothing at all to guarantee the checks and balances in this law to ensure that justice will be there and that fundamental rights will be protected. This is really very serious and does not agree with the Supreme Court justices, who made it clear that that the fundamental justice must still be respected. Natural justice must be there, but it is not there.

The special advocate clearly establishes in law that he is not a party to the dispute. He cannot appeal on his own. He cannot challenge any of the facts in front of him. He does not even know the facts, and so he cannot exchange them with the accused, except with the court's permission. These all take away any power that the special advocate could have and any jurisdiction from that person to be able to go forward and check the facts before the court.

The fourth issue is serious. We all look at this law as an administrative law. Everyone talks about it and looks into what should be in or out, thinking that it is simply an administrative law. It is thought that because it is an administrative law, you do not need the inclusion of full fundamental justice and all the other things, and so you do what you want to do with it. With this kind of mindset and attitude, this bill was designed. However, the consequences of this law are much worse than anything else we face in our Canadian courts today. Consequences of this law are detention, sometimes indefinite, or deportation to torture, devastation of people's lives and their families, and sometimes the torture results in people being killed in some places, even though in Canada, under criminal law, we no longer kill people. Under this proposed law, which is called an administrative law, the consequences can be killing someone or capital punishment. This is totally unacceptable.

I do not think we can blame those words about being an administrative law and, therefore, you do not need to prove it beyond a reasonable doubt. The standard of proof must be raised. Otherwise, we will have a serious problem with the stigmatization of people. The minute you accuse someone and a security certificate is applied against them, you will have to adopt the person as a Canadian. You can no longer do anything else with that person. You have prevented this person from living anywhere else in the world. You cannot not look at this as an administrative law. In a country that champions democracy, the perception is that people are found guilty of connections to terrorism. That is how people outside Canada look at this law.

What will happen? No country will want to take this person. He cannot leave Canada and go to any other country. In his country of birth, if they take him back, it is guaranteed that he will be tortured; his life will be devastated, and he will not be able to do anything afterwards in his life. This is very serious. When you make a law like this and charge people under such a security certificate regime, you will have to raise the flag that you are adopting this person because he is no good to any other country. In the end, our system will come through for these people after these devastations, and we will keep them in one way or another. We will solve these problems one way or another. Let us solve the problem now. Let us find the proper system to resolve these issues and let this devastation come to an end.

I trust in our justice system, and I am sure that at the end of the day, our system will fix some of these problems. I am also very close to Mr. Charkaoui because I brought his family with me in the car today and we have to go back right now. We have seen the family very closely, and we have seen how much he has suffered. I do not understand. We have a solution in our hands. We have the ways and means of ensuring that there are proper checks and balances in this law and protection for civil liberties and Canadian freedoms. We know that the law has that. We do not need proof about that. How can we say that we would leave you to go through the same process to the Supreme Court and find at the end that the system is flawed?

We claim that Mr. Charkaoui and others are not Canadians. Get a non-Canadian to fix our laws. Why can we not fix it? We ask them to spend money to have their lives devastated so that we can find out whether they are guilty. Why? I must remind all honourable senators on this committee that Mr. Charkaoui lost every single challenge with all the judges before he went before the Supreme Court. When he reached the Supreme Court, he won unanimously, and yet no previous judge gave him anything. Do not trust those judges, but they did say their hands were tied and they faced a different process in their minds. Is it fair that every time we get a judgment, Mr. Charkaoui will have his life devastated and the lives of others as well? Mr. Charkaoui did not bring the story of his daughter at the age of five when she saw a police car pass by in the street in front of her home. It was an ordinary police car. She ran right away to hug her daddy and she cried and screamed because she thought the police were coming to take her father away again. Psychological damage has been caused to this child just because we say, let us hold our noses and vote. We cannot hold our noses and vote. We have to reject this bill or ask for an extension to try to fix it.

I have minimum requirements in relation to this bill. I would have preferred to say just drop this bill and go to the Criminal Code and then find out what you could do with it. However, everyone told me my request would be totally unacceptable. I do not know why it is unacceptable. I think it is reasonable that the onus of proof will keep changing and the presumption of innocence should continue to be respected. We should bring those people forward under the Criminal Code and ask them to stand trial and to defend themselves. We are not doing this at all under this bill. Instead, we are stigmatizing people.

I have seen Mr. Charkaoui being fought through the media and world public opinion in order to try to bring Mr. Charkaoui to his knees. They tried to get people to walk away from him by bringing forward evidence that they knew was not proper. We won in the Supreme Court.

Talking about the destruction of evidence, when Mr. Charkaoui was about to appear in court, they brought new evidence, which is seven years old, just in front of everyone else to try to damage his name again and to damage the community's name. This is serious. It requires a hearing or a public inquiry to find out what is going wrong with this process. If we love Canada and care about it and if we care about the future of our children in this country, then we must ensure that these kinds of abuses stop.

This is a threat to public security. In the last year alone, I have faced more than two dozen people in Montreal who complained to me. They were mostly young people, but also there were imams who complained about CSIS harassment. I asked them to speak to CSIS and to cooperate with them. Today, most of these people after hearing the stories and the summary of the report of evidence and the throwing away of evidence and destruction of all the facts, come back to me and say, ``You told us to speak with them. If we knew what would happen, we would have never appeared before CSIS to speak to them.'' Now we know they can summarize our words out of context and we actually forget what we told them if we do not have the recording, which they do not allow us to have. We cannot defend ourselves, and that is the worst mistake. Worse yet, it can be used against someone else without us knowing under the terms of secret evidence and security protection.

In closing, I would urge the committee to look into the following areas: First, in introducing a special advocate, the government should avoid, at minimum, repeating the mistakes that have already been made and that are recognized in the U.K. Otherwise, it will not advance the cause of justice and will be of little benefit in protecting the constitutional rights and freedoms of the person named in the security certificate.

Second, the bill allows for the use of secret foreign evidence that is often obtained under torture. Torture is not defined and torture is not necessarily known to those looking at the evidence. The practice of the use of summary evidence and intelligence reports based on vague assessments of hearsay, newspaper clippings and other sources of unreliable information, all of which are used to raise suspicions against the defendants and unfairly uphold the security certificate against them, must be banned.

Third, the bill maintains a low standard of proof to uphold the certificate — essentially, reasonable suspicion. Under this law, a standard of proof cannot be created in a manner that holds such serious consequences for the innocent, including associating them with terrorism, stigmatizing them and putting their life and that of their family at risk. It is imperative that the standard of proof be raised to the same level used in criminal cases.

Fourth, under the proposed bill, the return to torture continues to be a possibility. This is unacceptable, especially in Canada. The return to torture must be clearly banned in the new bill. It must be shown that it is banned.

Fifth, under the proposed bill, indefinite loss of liberty, imprisonment, house arrest or preventive conditions continue to be a possibility. This possibility must be clearly banned in the new bill.

To avoid the flaws of the old legislation, the Senate must recommend that the new bill respect natural justice and due process, such as the right of full appeal, the right to know the precise charges against one, the right to an impartial and transparent hearing, the right to know the evidence against one, the right to properly test and to cross-examine the evidence, the right to the application of fair rules of evidence, the right to be presumed innocent until proven otherwise, and the right to full and complete defence.

Parliament must fully implement the recommendations of Justice O'Connor as well in order to go hand in hand in giving this kind of oversight.

The Senate must ensure that we do that which is right, not necessarily that which is popular; but what is popular today from all Canadians is to respect the Canadian Charter of Rights and Freedoms, to respect our civil liberties and to ensure that all this is done in the right way.

Thank you very much for your patience.

The Chair: Thank you very much. I think it has been explained that Mr. Elmenyawi must go back to Montreal imminently with the Charkaouis.

Does anyone have any questions specifically for Mr. Elmenyawi?

Senator Jaffer: Anyone who knows of your work in Montreal is very appreciative of the extensive work you do for the community. We certainly thank you for that work.

The points you made have been well covered all day. However, the point I would like my colleagues here to hear about is the work you do with the youth in Montreal and what the Charkaouis' experience has done to the Muslim youth in Montreal. I think my colleagues should hear about that.

Mr. Elmenyawi: I am also the Muslim chaplain at McGill University and at Concordia University, so I work a lot with the youth. It is part of my job to try to bring them together in a multifaith interaction with people of other faiths and to try to have them learn about others, their neighbours — that is, to know the religion of their neighbours, whether they are Christian or Jewish, Sikh or Buddhist or whatever, and to work together in a very good way. Today, Montreal is an exemplary city when it comes to the relationship among the Jewish, Muslim and Christian communities at large. That is a great thing, and I am very proud of the work we have done there. Today, it echoes all over Canada in the sense of being successful and being able to get people to understand and also work against all the myths and stereotypes.

There is another part of this, though. For example, this bill was there before 2001. Before 2001, accusing someone of terrorism was serious, but it was not the same as after September 11, 2001. This legislation was on the books in the 1990s, but it did not carry the same stigmatization or receive the same media coverage. It did not bring peoples' reputation to the ground. It was done in secret and everything was done and finished and people were gone and things continued to go on, and we did not recognize that until after September 11. After September 11, those young kids came to me and said, ``Look, people tell us to go back home. We do not know any other home except Canada. Where should we go?'' The whole question of loyalty and connection to our society and being able to sacrifice for Canada and to show that Canada is their country and that they are very grateful to be here within this democratic process is put at risk when we come up with laws that disproportionately target Muslims. That is why this bill is so serious.

Also, when they are interacting together behind closed doors, they talk about CSIS calling and asking them to come, for example. Most of their parents come from a police state. The minute they hear the word ``CSIS,'' the mother does not sleep and the father probably cries. It is a serious problem. They call me and we talk to them; we calm them down and tell them, ``There is no problem; you can speak out and explain some of the points of view that you have and answer the questions fairly.'' Now, however, with all the information that has been flying around about the mistakes with Maher Arar and hearsay that has been used as evidence and the fact that you are looked at with suspicion and all that kind of news, it is really completely hurting that position. Today most of them would say they would not do it again. If they were asked by CSIS to go they would not talk to them; they would refuse any conversation with CSIS.

I know there are people at CSIS working very hard to keep us safe. However, there is that attitude and they do look at the Muslim community, as Mr. Charkaoui spelled out earlier, as a source of informers. This kind of culture and mindset is very serious to continue that they are only gangsters or they are only suppliers of informers and they will have to keep asking them and recruit them to become informers, but there are lawyers and agents who can work in there. There are experts and consultants. They should talk with them and work with them and not get someone who is not a Muslim to judge them as being an extremist or not an extremist.

Senator Day: Thank you very much for your comments. During your comments, you mentioned your concern that torture evidence could be used. Are you aware of the amendment that was made in the House of Commons? Do you feel it is inadequate?

Mr. Elmenyawi: The amendment does not define ``torture'' and does not clearly stipulate that the context under which the evidence was received will be clearly indicated to the court. The court may not even be aware that the evidence in front of them was produced through torture. That is my first point.

Second, the word ``torture'' by itself was not defined. Mr. Bush says, ``We do not torture anyone.'' Someone then came out and said, ``Look, we do waterboarding.'' The United Nations then said that waterboarding is clearly torture. There is also the deprivation of sleep and having light for 24 hours and the deprivation of food. Is that torture or not? What is torture for the committee here?

To me, if the Egyptian police or the Moroccan secret police stopped me in the street, that would be torture already just by knowing what they do. I do not know how I would behave. I do not know how you would behave if you happened to be there and they said, ``Come to the side; we would like to talk to you.''

Senator Day: Therefore, torture within the meaning of section 269.1 of the Criminal Code is not specific enough?

Mr. Elmenyawi: No.

Senator Day: Cruel and inhuman and degrading treatment or punishment within the meaning of the UN Convention against Torture is not clear enough?

Mr. Elmenyawi: No, but this would be left for the interpretation of the court all the time, because most of it is the same criminal code and the same language that is used in the United States, but the Attorney General said they did not allow torture although they did allow waterboarding, and that is certainly inhuman treatment.

The Chair: We will now proceed to the other two witnesses from this panel. Mr. Kafieh, you may make your presentation.

James Kafieh, Legal Advisor, Canadian Arab Federation: Senators, you have heard from many lawyers today. Although I will touch on legal issues, I want to focus primarily on the impact that this kind of legislation has on the Arab-Canadian community.

Since 9/11, there have been a number of detainees; certainly all but one of the recent detainees has been Arab- Canadian and Muslim-Canadian. We have seen how the government has created a major facility in Kingston that our community and many others refer to as Guantanamo North. It is not just the relative handful who have been detained and imprisoned in that facility who are affected by this proposed legislation. It directly impacts 1 million Muslim and Arab Canadians. The number of people who are concerned about this kind of treatment extends far beyond the Arab and Muslim communities.

Along with that kind of symbol, it must be understood that this bill has a major impact in terms of the proliferation of stereotyping and race hatred, and certainly it gives a green light to racial profiling.

The Arab-Canadian community is complex. It is a multicultural society in its own right. For example, half the Arabs in this country are Christians. Many people do not even know there is such a thing as an Arab Christian, yet that is the reality. Even within the Muslim community, it is very complex. I will not dwell on that; that is something other people can speak to. We are very much a complex, multifaceted society. The fear and prejudices that impact on the Muslim community also impact on the Christian community. I happen to be a Christian Arab, but it impacts on Arab Christians and Muslims alike.

I want to turn my attention to the bill that is immediately before us tonight. The heart of it, of course, is the special advocate. Everyone is entitled to his or her day in court. We deal with complicated issues in our courts all the time. We deal with very sensitive issues; we deal with sophisticated organizations that learn and apply their lessons to subvert our way of life. I am talking about organized crime, for example. These are people who have a long history of killing people in this country and certainly in many countries — it is not specific to any one society — and we deal with these issues. We have dealt with them successfully in our criminal courts. There is no reason to believe that we cannot deal with this issue. In fact, we are looking at a relative handful of cases, maybe a half dozen cases. Can we not process them through our criminal court system? Is this what we are seriously being told? Is this what we are being fed? I do not believe it.

The special advocate system that we are putting in place is to save impugned legislation — it has already been struck down; we have one year to save it. Therefore we have conjured up the special advocate, which the government had fought against in the first place. As a signpost for the future, we know that former British special advocates are among the most articulate critics of that system.

I wish Mr. Copeland the most success in his efforts to become cleared and to join the ranks of the special advocates, but I will make a prediction here that in the near future he will be one of the more informed and articulate critics of the special advocate system if he is successful enough to get in. I wish him the best of luck, because we will need such assistance later on.

It is a fundamental principle in our legal system that someone is deemed to be competent to stand trial if they are able to help their lawyer in their own defence. It is impossible to help the special advocate defend you if you cannot talk to him or her. It is impossible. Fundamentally, the system, again, will fail. We are confident that when in time it does work its way to the Supreme Court and is again struck down, the government will scramble around to find some other fig leaf to save the legislation, or maybe American pressure will change to a different bent and the legislation can be slowly let go at that point.

It is as simple as this with regard to the summaries that will be provided in this system to the person's real lawyer. If they were so good and informative, then you would not need special advocates in the first place. Ultimately, there are two fig leaves. That might make you feel more secure, but it does not change your position very much.

There are two tiers of justice in this system. We have one for citizens and one for non-citizens and immigrants. Essentially, overwhelmingly, what it means is that when we are talking about immigrants we are talking about ethno- racial communities. That is where this legislation will find its mark and will impact. Ultimately, we will be undermining our Charter, which will affect everyone in this country in time, and respect for civil liberties. The culture that puts value in civil liberties is already greatly damaged since 9/11.

This is one part of a wider matrix of legislation. I will refer to the no-fly list, for example. We had the United States' list before; now we have a Canadian list, but that does not mean you are off the U.S. list. We have just added the Canadian list. You are now subject to two layers. It seems that it was designed to create the maximum disruption in the lives of Canadians. For example, when you are booking your flight, you cannot find out whether or not you are on the list so you can take care of it in advance. It is designed to create the most inconvenience at the most inopportune moment. From what we have been told by the minister's office, if you are a terrorist your name will not appear on the list for security reasons. They do not want you to know that your name is on the list. It has nothing to do with making Canadians actually more secure.

This kind of thing does have an impact on everyone who is thinking of taking a flight, because they are running through their mind the humiliation that they might go through because they have an Arab name that might be similar to another Arab name. Arab and Muslim Canadians have restricted their travel to the United States because they are tired of being fingerprinted and having retinal scans at the border. It is real. Even now, when you are taking off and landing in Canada, you will be impacted by this American demand that we have a no-fly list.

This legislation is facilitating an environment of xenophobia and fear-mongering by the government. I know that senators here are under a lot of pressure to pass this legislation. With what you have heard today, if you cannot put a stop to this legislation, at least to get the thing fixed, then there is a serious question about the value. If you ever had real purpose, I think this is where you can make your stand. It is worthwhile. At some point, if our process is being driven by what the United States wants for Canada, then we should ask the question: Would we not be better off, instead of having 100 senators in Canada, having one senator in Washington where the decisions are really being made for us?

We have a real problem in terms of alienation. The Arab-Canadian community is developing. We have had problems with CSIS for a very long time. In 1991, the Canadian Arab Federation produced a brochure entitled, When CSIS Calls. The brochure was a civil liberties guide. We produced it within one week of the 1991 Gulf War, because our community was inundated with CSIS agents demanding interviews with ordinary members of the community. I say that because I was the president of the Canadian Arab Federation at the time and I knew many of the people who were calling in to complain and to tell us about it. I know first hand. We have, I assure you, updated this. The difference is that we are a community that is growing and has grown a lot. We continue to grow. We have probably doubled our size since that war. We are one of the fastest growing communities and we are maturing. In 1991, you would not have found so many Arab- and Muslim-Canadian lawyers appearing before you. This country is changing. It is important for you to get in step with that rather than be an obstacle to it. We know that we will be here for a very long time, and we will remember the roles that various parties played in protecting us or in facilitating attacks on our community.

I am a former Canadian military officer. I have dedicated years of my life to the security of this country. I understand that we have real needs for security, but this proposed legislation has nothing in common with that. It undermines security because it facilitates alienation. It is damaging to our society, and it is undermining our security.

Sameer Zuberi, Canadian Council on American-Islamic Relations: I want to thank everyone for spending the entire day listening to testimony from one person after the other. I am sure it is a tiring business.

The Canadian Council on American-Islamic Relations is also known as CAIR-CAN. We have been working within the Canadian-Muslim community for Canadian Muslims in the area of human rights since approximately 2000. We are involved in issues from reasonable accommodation to national security. We were interveners in front of the Supreme Court for the Charkaoui case in terms of the security certificates when the court deemed it unconstitutional. We were interveners in the Arar inquiry, the current Iacobucci inquiry and the Air India inquiry. Like the Canadian Arab Federation, we have a lot of experience in dealing with these issues.

Like the Muslim Council of Montreal and the Canadian Arab Federation, we are in touch with the Muslim communities across the country. We have representatives across the country. We are able to feel the pulse of the country.

In terms of your role here today, you are probably more educated than the majority of Canadians on Bill C-3, on security certificates and on the issues at hand. You are now hearing from us on how the community is responding to this, how Canadian Muslims are responding to this.

CAIR-CAN's position is that Bill C-3 should not pass, that security certificates should not be enacted and that security certificates should be abolished. However, we feel that Canada does have a responsibility to prosecute accused individuals or individuals who are thought to be terrorists. Therefore, we suggest doing so under criminal legislation, with criminal standards, instead of the current, faulty and loose immigration standards that we are trying to work under.

Current immigration standards do not solve the problem; they simply exacerbate the problem. They do not deal with the issue of terrorism; they simply take it out of our home and into someone else's backyard. This may very well come back to hit us down road if we are indeed deporting terrorists.

Our position is that Bill C-3 should not pass. Instead, we should use robust criminal procedures in order to prosecute people, because they are tried, tested and true. Currently, we are prosecuting accused terrorists in this country under criminal procedures. They are the Toronto 18 and Ottawa's own Khawaja. This country is going through the process right now. We have trust and faith in the courts that they can deal with these accused individuals. If they are guilty, throw them in jail and leave them there, potentially for life. If they are innocent, let them go. We would expect nothing less if we, ourselves, were ever accused. We should give the same treatment to other individuals. It is not a matter of being Canadian or non-Canadian; it is a matter of doing the right thing and respecting human beings across the board.

Citizenship does give you privilege. It gives me medicare. It should not allow a person who does not have medicare to be deported to torture or to have their name smeared for the rest of their life. I like my medicare, and I do not expect other people in Third World countries to be receiving it. However, I do expect that we do not deport people to torture, that we do not treat people with a double standard for serious allegations such as possibly being terrorists.

This is a very serious matter, and we should deal with it equally seriously. We should not deal with it in a fickle or unprincipled, dishonest way. This important issue is not only affecting five men and their families: it is also, as Mr. Kafieh mentioned, directly affecting over 1 million people in this country. It is also affecting others who are looking for justice or standing for principle. There are many such individuals in Canada, not simply a handful. I think millions of Canadians are standing on principle. I think they are watching what is happening in these buildings to see whether or not our elected officials are standing up for what is just.

In terms of Bill C-3 and criminal standards, we believe that proof beyond a reasonable doubt is the way to go. This is a serious allegation we are laying here. We are not talking about an allegation that you stole cookies from my cookie jar, and therefore I have reasonable grounds to think you did. If you are stealing cookies, that sort of litmus test might be fine. However, if we are dealing with accusations of terrorism, we should be prosecuting by equally serious methods.

Second, we also see that the Canada Evidence Act allows for secret evidence. Some say we cannot deal with this in criminal legislation because there is no mechanism to deal with secret evidence. However, the Canada Evidence Act actually allows us to deal with secret evidence in criminal trials. Therefore there is a way to insert secret evidence into criminal procedures, and there is a way for criminal procedures to deal in a responsible way with accused terrorists and people who are named, and to do that in a way that will show the rest of the world how to deal with this problem.

The next issue is that immigration procedures fail to take into account the international dimension of security threats. The United States was not attacked from the United States. The United States was attacked from outside the country. The United States was attacked by people who were thinking outside the country, people who were flying from outside the country and people who were holding passports from outside the country. They were not American citizens; they were terrorists. If the United States had those individuals in the country and then deported them, and these same individuals took that plane and flew back to America, President Bush would have had an even bigger problem on his hands. No more would it have been simply a threat from outside; it would have been a threat that was in the midst of the United States. If they had deported the people outside and then those people attacked back, how would the American population have reacted to that? Certainly that would not have been a pretty day for elected officials or for anyone in the country.

My argument is that if we think we are dealing with terrorists, let us deal with them responsibly. This is a globalized world; no more are we riding on horse and buggy where it is difficult to get around the world. On the contrary, this is a globalized world and an interconnected community. If we are deporting real terrorists outside of the country, we have a problem on our hands.

I have not written a 100-page brief or studied this issue extensively. However, I am putting forth a sound argument which states that we have an obligation to deal with terrorists. If they are, in fact, terrorists, they should be thrown in jail for life.

I put forth that the security certificate and the special advocate does not deal with that, and it is a major flaw. If, in fact, these people are terrorists and they come back to our country and attack us, it will open up an issue that we could have prevented here today, at this table.

Criminal standards also prosecute people instead of throwing people out of the country. It deals with a problem instead of giving it to someone else to deal with it or not.

That point is important to emphasize. I am not an amendment advocate. Thus far, people have been talking about special advocates and have been amendment advocates in doing so. They are proposing amendments to a flawed system.

I am not doing that because I see a major flaw in the proposals being put forth. We are not dealing with the problem. We have been hearing from dozens of individuals who have not been putting forth an idea that we need to deal with the issue in a responsible way.

I want to give a picture of how these national security investigations actually work. They are a mystery to people and we do not often see how these things are working. I, myself, do not know. I was never a CSIS spy. I, like Mr. Kafieh, was working in the military. I was a corporal in the reserves for five years. I did so because I have 100 years of roots in this country through my mother's side. My father came to this country in the 1970s. Like many other men who immigrated here, he married someone from Canada.

I have roots in this country that go back 100 years. I will get back to that and the way people like myself, who have roots in this country for so long, are still made to feel like outsiders and how we are still made to feel like we are first- generation immigrants, even though we might be fourth or fifth generation.

I want to talk about the way in which secret evidence actually works and the way in which these national security investigations work. At CAIR-CAN we have some sort of picture, because people call us on a weekly basis and say that they have been contacted by people. They ask us what they should do. We have an idea of how these investigations work.

National security organizations have an individual who is a person of interest. They will have maybe three or four hypotheses. Let us say hypothesis A is that the individual is innocent and has nothing wrong. Hypothesis B is that maybe the individual has not done something but might be prone to doing something. Hypothesis C is that the individual is neither innocent nor prone to doing something but is involved in something deeply. Let us test for hypothesis C. The national security investigator and the units investigating the interested party will test the three hypotheses. The first one is not interesting and is not the mandate of national security organizations because it will not lead to any sort of goodies for the investigators, or it is not a concern because if it falls under hypothesis A, there is no problem. Let us make sure to test for B and C rigorously to see whether the person is sympathetic and therefore may be prone to be involved in something or is actually involved in something.

We are testing rigorously for B and C. Our case is built around hypotheses that try to prove B and C instead of looking at A and saying that the individual is innocent and there is nothing on him. Instead, we look for B and C rigorously, so every snippet of information and every word we hear goes to B and C to build up the file. I will mention the kind of investigating with B and C hypotheses in mind, where we look to see whether an individual is involved in terrorist activities, knowing they might not be involved but we focus on the latter. Thus, we have Maher Arar, Abdullah Almalki and Mahmoud Jaballah, one of the five men. We heard other issues. Arar was named by national security investigators as an Islamic fundamentalist. An expensive inquiry later showed that he was not, but hypothesis C-type testing showed that he was. Was hypothesis C right? No. We find out much later, after he was tortured, that hypothesis A was right and he was innocent. Hypothesis C failed, but only after focused light was put on what work was actually being done.

Can we trust the work? I would say from the Arar example, no. Hypothesis C is a problem. If we simply do hypothesis C testing, then yes, we will find that the person is a terrorist, because that is all we are looking for. We forget hypothesis A, even though there is potential innocence.

Abdullah Almalki is going through an inquiry, although it is not as thorough as the Arar inquiry, so it will not reveal as much, unfortunately. The inquiry will determine whether Canadian officials were in part responsible for his overseas deportation and torture. At the time, Mr. Almalki was named the top al Qaeda person in Canada. The RCMP goes to the United States, does a PowerPoint presentation to the FBI and the CIA and tells them that he is the guy they have been looking for all along. Their agencies say no, but again under hypothesis C-type testing, this person is dangerous, and so they build a big file that leads to deportation and torture.

Another example is Mahmoud Jaballah. It was reported at his bail hearings that the Canada Border Services Agency wanted to put cameras throughout his home to watch him. Why not? He is an accused terrorist. He is a very dangerous individual. There is an argument in that. However, the problem is that CBSA did not have the right floor plan. You go into court and think you will test your evidence beforehand. It will be there for the judge and the defence. This is one of the rare instances in security certificates that the defence can actually test the evidence. The evidence presented was a floor plan, but it was not Mahmoud Jaballah's home that CBSA was trying to camera up. Rather, it was his neighbour's home. That is the evidence that they openly presented to the court. Mahmoud Jaballah said that it was not his home but that it was someone else's home. These were CBSA agents keeping tabs on him and they did not even know where his home was and did not have the floor plans. I will leave it at that in terms of secret evidence, but the analogy of hypothesis A versus C testing leads to a problem.

I will enter into the community narrative. This is an important point to mention because the community is being chilled by laws of the sort that Bill C-3 proposes which prompt CSIS visits. These happen to dozens of people on a weekly basis in this country. I say that because, on a weekly basis, our office receives calls from average Mo Muslim. Mo Muslim calls our office on a weekly basis and says that he has been contacted by a national security agency and asks for help. It is always the same story, and it is never a straight-up one. It is always that a CSIS officer called but he did not say who he was. They say they are federal agents working for the federal government. They do not clearly identify themselves. They call people and say they want to talk. Mo Muslim is simply involved in a community organization and is not involved in any dubious activities.

Mo Muslim is asked to meet with them. Mo says he wants to bring his lawyer to the meeting. Mo Muslim is told that he does not need his lawyer present because they just want to have an informal conversation with him. That narrative is happening to dozens of people in this country, and it is having a chilling effect.

I will leave it at that. In closing, I ask that the committee take note of what you have heard from this panel, that you not allow Bill C-3 to pass and that we do the principled thing.

Senator Andreychuk: I have resisted other witnesses who have come forward and said that we have not had time and that we received this bill and did not know about it. However, I cannot resist engaging a lawyer who has been involved in the cases, as you have said, Mr. Kafieh.

Some of us have been on this committee since pre-2001. Some of us were on security and intelligence committees before, and we tracked issues for quite some time and reviewed the anti-terrorism bill. At that point, it was a horrifically long, complicated bill, and we were given time frames within which we had to work.

I do not know if we did the best job we could, but we gave it our best try. We weighed all of the evidence and continued that in our review and in our studies of the Public Safety Act and the Immigration and Refugee Protection Act. We raised the issue of the definition of ``terrorism'' being different than that of ``anti-terrorism'' and the question of why they are not the same.

I find it rather surprising that you would say I am dealing with this issue cold turkey. I have been waiting for this bill, which I know will not be the last bill on the anti-terrorism legislation. I am continually worried about whether we have the right balance, as we learn more and see how some of our systems work and some do not work. I want to express that because I found it surprising and difficult to accept.

What has been the most troublesome to the community is the definition of anti-terrorism that included motive. That put more of a chill into the community than any of these other situations. We have struggled with that. Our committee has recommended a change in the definition plus many other recommendations.

Do you think the difficulties faced by the community as a whole come from the definition that includes motive as opposed to intent and actual acts? Is this more of a problem than other issues, or do you put the same priority on it?

Mr. Kafieh: I have a problem with the motives attributed in the legislation. They have been struck down in the courts, and they should be removed from the legislation. I have a problem with the use of the term ``terrorism.'' It is an emotive and arbitrary term and harkens to name-calling. If there is someone posing a threat to our security, we have to deal with that, and we have been able to do that through the Criminal Code.

The special anti-terrorism legislation undermines our system of justice in this country. It undermines our values and it weakens us in terms of our own security because it does nothing to overcome one of our fundamental problems, which is, as CSIS has put forward, one of alienation. As a community, we do not feel that our interests are being protected by our government.

I think the threat of terrorism in Canada is greatly exaggerated. I think there is a threat, but it is exaggerated. For example, with regard to binary chemical weapons where you mix two different liquid chemicals to produce an explosion, if al Qaeda were serious about this, airliners would have been falling out of the sky around the world for some time now. To the extent that there is a threat, the Muslim and Arab community in Canada is as likely a target as anything else. When Air India went down, the Muslim community took a big hit.

We have as much interest in the security of this country as anyone in Canada. Ultimately, what is it we are trying to secure? It is a way of life, and that depends on maintaining our values as a society. I think that this legislation ultimately undermines the values of our society, something the terrorists could never do.

I appreciate your concern. I do not want to be disrespectful in terms of how seriously you take your work here. I am counting on it. That is why I believe this is a good opportunity to demonstrate the role of the Senate and vote this legislation down.

Senator Andreychuk: When Bill C-36 was sent to the Senate, the government of the day indicated that Canadians expected some measure of prevention as opposed to curative measures only. They said they were mindful of balancing individual rights with the need for collective security. That legislation was striking a different balance than in the criminal field, because the results could be so much more horrific. We saw the bombings in Spain and England following 9/11, and others previously in Kenya and Tanzania. The case was built on the United Nations' examination of terrorism. It was not Canada going alone; it was being part of a worldwide UN response on terrorism.

In this case, perhaps it was a different view to the balance between individual and collective rights looking at prevention, where I was pleading for another response.

Mr. Kafieh: I would remind us that within weeks of 9/11, we were told that you are either with the United States or you are with the terrorists. That was laid out clearly for us. I understood what that meant, and I knew the implication.

With respect to preventative work, conspiracy to commit murder has been a crime in this country for a long time. You do not have to wait for someone to be murdered for the police to begin doing their work. If you want to look at Air India where the inquiry is still doing its work or the millennium bomber, the real issue was one of competence. However, CSIS will not point the finger at themselves in lacking competence when you ask them how to make Canada more secure. An elected government would look bad if they were seen to not respond. Therefore, they go to the security people and ask them what we shall do to make ourselves more secure. They invariably tell you, ``Give us more power, more tools.''

There is an ill-defined threat, but they are asking for more tools to meet an ill-defined challenge. We are chasing those shadows, and while we are doing that we are undermining our values as a society. When you are involved in a conflict over values, as it has been presented to us, this is not a sensible way to proceed.

Senator Joyal: Both of you ask for us to quash the security certificate. In the Immigration and Refugee Protection Act, security certificates are used not only in cases of alleged terrorism, but also for criminal organizations and international human rights violations. The proof of that is in Mr. Ernst Zundel being deported to Germany in 2005 and Mr. Paul William Hampel was deported to Russia in 2006. Neither of them had anything to do with the Muslim or Arab communities. One related to Holocaust denial and the other involved multiple identities and Russian spying.

I understand you are asking us to amend the Immigration and Refugee Protection Act to eliminate security certificates on all three accounts. You allege terrorism would be better fought within the Criminal Code, but you also ask us to eliminate security certificates in relation to important human rights violations or criminality.

Mr. Kafieh: People have been deported from this country for many good reasons for decades. You would still be able to do that. If these people were deported from Canada, under a different system presumably they would end up under exactly the same circumstances, deported. However, they would have had their day in court. This is really the difference. This bill may be convenient, but where does that logic end?

Senator Joyal: I am trying to understand your logic. In the case of a special advocate, Canada would not be the only country to have such a system. You and I may examine the bill and identify flaws in it. However, other countries have experience with this system, for example, Australia, New Zealand and Britain.

The system in Britain has been under scrutiny by the House of Lords and a committee of the House of Commons. It is under constant scrutiny. When defects are identified, corrections are implemented.

There is no perfect system. On the other hand, there is an overall objective, that is, a fundamental preoccupation with the rule of law and the respect of human rights. However, you are telling us that in trying to improve the system, we are creating more damage than if there were no system at all and we relied on the Criminal Code.

Mr. Zuberi: I have not thought much about espionage or serious criminalities, which were the two reasons why the security certificate was created approximately two decades ago. At that time, legislators did not have terrorism in mind. The nature of espionage is that it is dishonourable because you are basically stealing secrets from our country, but it ends there. It ends at stealing secrets and information.

The nature of serious criminality, again, is that it is dishonourable, but it ends at importing drugs and such things. It might be gang violence. However, the nature of criminal activity is that it is localized. It is not as global or vicious or devastating.

However, the nature of terrorism is different. Terrorism is devastating and its impact is not localized. It is not simply limited to stealing information, as with spies. It is not simply limited to localized crime, as with serious criminality. It extends to serious damage. That is the nature of terrorism. It is amorphous. It is not localized to a particular territory or to a particular country. It is global, as we unfortunately have seen.

We need to deal with a global problem, a type of problem that can cause serious damage, differently than we do spying, which is information stealing, and localized crime — gangs and other such things. The nature of the crime is different, so let us deal with that different problem in a different way, because it requires a different solution.

The criminal solution right now is the best solution because it ensures that the terrorist is under lock and key instead of roaming around the world and plotting against us.

Senator Joyal: Mr. Kafieh, would you care to comment?

Mr. Kafieh: I would ask you to clarify your question. Could you rephrase it for me?

Senator Joyal: As I mentioned earlier, the security certificates that were used in deportation recently have involved cases that were not linked to terrorism per se but to other criminal activities. For example, in the case of Mr. Zundel, it was an important international human rights violation. In the case of Mr. Hampel, it was associated with alleged spying activities for the benefit of a foreign country.

If we get rid of the security certificates because we think that we cannot put into place a system of special advocates that could be improved to try to meet the level of protection of human rights that the Supreme Court has established and recognized — if you feel that this is an impossible request that the Supreme Court has placed on our shoulders — then I am tempted to concur with you.

The Supreme Court, however, in its wise and, as a former witness told us, unanimous decision, has challenged us to come up with a system, which might be a hybrid system with a special advocate, that would meet the test of the court and that would respect human rights and the rule of law in our country. The position you take, which is to ask us to get rid of the security certificates for whatever cause — spying, criminal activities, terrorism and so on — because there are other means of dealing with those that might be more effective, runs counter to the challenge that the court put to Parliament to come forward with a system that would meet that level of respect for human rights.

Is the Supreme Court fooling itself, because this challenge is humanly impossible? Or, in your opinion, did the court err in coming to a conclusion that, based on your experience at the grassroots, is not the most effective system to fight terrorism?

Mr. Kafieh: The courts have a responsibility. They decided that this was not constitutional. They suspended the impact of the judgment for a year to give the government a chance to save the regime. Ultimately, however, that does not mean that it will be saveable.

There is a challenge out there on the table for the government to try to fix the legislation; but it is like other legislation that has been found to be unnecessary — and I am not trying to get into another area of controversy here — for example, the law on abortion. That went down. There were many efforts to try to keep a regime in place and there were long court battles over decades, but, ultimately, it finally fell by the wayside.

If we are fortunate enough that we are successful in keeping our own values as a society together, I think we will clean up this security legislation as well and regain our system of justice. This is my opinion.

The court is not challenging the government to fix it. It is up to the government if it can fix it or not. It could come down; you could pass this bill, and it could end as quickly as it takes time to wind its way through lower court decisions, to end up before the Supreme Court again for another challenge, with people arguing that it is not constitutional.

You have an independent decision to make as senators as to whether this is an acceptable arrangement for you. Personally, I do not think it is; and I think it is damaging in terms of what it is intended to do, which is to make us more secure.

There is no question it is convenient for two ministers to sign a paper and have it go through a closed-door session; but, frankly, we are talking about a relative handful of cases. Unless we are intending to go down that slippery slope and start using security certificates far more often, it makes more sense to invest our resources in dealing with the problem through open court. Let the court system deal with it. I think it would be far better for our society to deal with these challenges.

The Chair: Thank you, panellists. We appreciate your input.

Our final panel has four witnesses. We have Julia Hall, representing Human Rights Watch; Alex Neve, representing Amnesty International Canada; Roch Tassé, Coordinator for the International Civil Liberties Monitoring Group; and Dominique Peschard, President of the Ligue des droits et libertés.

Julia Hall, Human Rights Watch: On behalf of Human Rights Watch, I would like to thank the committee for the opportunity to appear before you today. We come to you from our hub in New York. We are not a Canadian human rights group; we are an international human rights group. We welcome the opportunity to come up here and to comment on this legislation specifically because we see it in a global context. I would like to talk a bit about that today.

Our detailed concerns on the substance of Bill C-3 were put forth in a submission to the House committee when it was deliberating the legislation. I would ask that that submission be entered into evidence before this committee as well. I can provide that in English and French to the clerk afterward.

Although Bill C-3 has been amended since that submission was written, Human Rights Watch does not believe that those amendments remedy the fundamental defects of the bill that render it in violation of Canada's international legal obligations and, in fact, render it in violation of the Charter.

I would like to look at this in two more international frameworks. The first is the international framework and the second is the trans-Atlantic framework. There is very little that actually can be said that would be new and surprising to you after such a long day, but I think reframing some of this information might actually perk us up at this late hour.

Human Rights Watch's opposition to this bill arises from a serious, growing concern that many governments the world over are attempting to neutralize the suspected but unproven threat to national security by using their immigration law, which often involves the use of secret evidence and, as we all know, provides fewer procedural guarantees, as a proxy for the criminal law, which requires investigation and prosecution with the full panoply of due process guarantees.

I am senior counsel at Human Rights Watch in the terrorism and counter-terrorism program. I cover issues in North America, Europe and North Africa, and the Middle East into Central Asia. When I say that this is a growing phenomenon, I say that from experience in research and advocacy in well over 20 to 25 countries.

As we maintained in our amicus brief as interveners in the Charkaoui case, the penalties and the severity of the sanctions associated with the security certificate regime in Canada — indefinite detention, which we would say arises to arbitrary detention under international law; indefinite house arrest under severe restriction; and the possibility of return to risk of torture — we believe amount to criminal sanctions. As such, they require a much higher level of procedural protection than is afforded under international law for ordinary immigration proceedings.

I would like to say right up front that it is not just Human Rights Watch and Amnesty International and the International Civil Liberties Monitoring Group that have looked at Canada's counterterrorism measures through the international lens. The United Nations special rapporteurs on both torture and counterterrorism and human rights have criticized this complex of measures in Canada, in particular the security certificate regime, as being inimical to the high degree of procedure that the rapporteurs believe should be involved when the penalties involve torture and the prohibition against arbitrary detention. The UN High Commissioner for Human Rights has also commented in various ways on similar measures in other jurisdictions.

This is an attempt to locate Canada in the constellation of countries that are really struggling with a threat from terrorism and an understanding that they need to balance that threat against the fundamental duty of the Canadian government to also protect human rights.

As has been noted by a number of presenters today, the crux of the Charkaoui decision was the finding by the Supreme Court that the regime did not afford a certified person the right to know the case against him or her. There is a fundamental misconception in Canada, I believe, that the infusion of a special advocate into that system will somehow remedy that defect.

It is Human Rights Watch's position that a special advocate, as provided for in Bill C-3, does not in fact remedy that defect. Practice in the United Kingdom in particular strongly indicates otherwise. Simply grafting onto the Canadian law books a system that we know has so many deficiencies is very disturbing, because it forces you to miss an opportunity to do something that many Western democracies have already failed to do, which is to actually take the time and make the effort to come up with a system that does really protect national security and balance civil liberties.

In anticipation of my appearance here today and understanding that we were the last panel, I thought that we would want to do something different with this testimony, so I rang a senior barrister in the United Kingdom who has worked in the Special Immigration Appeals Commission, SIAC, for the last several years. I have given expert affidavits in the Special Immigration Appeals Commission and I have sat in on SIAC hearings as an expert on the Convention against Torture. However, this is not a barrister who is a friend of mine. I talked to her for the first time this past weekend.

I had a list of questions directly relevant to Bill C-3 that I asked her. Our conversation was extremely illuminating, if extremely redundant. Redundancy is something I am sure you can all relate to after this long day.

Let me convey to you, first of all, her utter dismay that Canada would actually consider adopting a system that is, in virtually every respect, the same as the one she works in on a daily basis. At one point she got so worked up that she said, ``I know I am very worked up and I have to really calm down.'' Then I was able to ask my slate of questions.

When I asked how many times a special advocate had sought judicial authorization to speak with a person threatened with a national security removal after reviewing the secret evidence she replied, ``Well, not ever in my experience, but we would never know.''

I also questioned her on the ability of a special advocate to seek disclosure from the government of additional information. She replied, ``In practice, the special advocate can try to get additional information from the government, but, again, we would never know.''

Several times she replied that she simply did not know the substance of the allegations against her client nor how the special advocate operated to advance the client's interest. Here is how she concluded: ``It is not a culture of seeking to ensure, as far as possible, that there is transparency. Our courts have said that the culture of the process needs to be more proactive in terms of transparency, but there is no culture of ensuring that the claimant actually knows what's going on. We are excluded completely from the material and also from the process that goes on enclosed.''

This barrister noted that if a special advocate cannot communicate with a person subject to removal after seeing the classified information, how does the special advocate know what to ask the government or the SIAC in order to safeguard that person's interest? Who determines in the end what that person's interests are?

The most significant defect in Bill C-3, as has been said time and again throughout the day, is the firewall between the special advocate and the certified person. A special advocate is likewise kept in the dark by the process, not being given the ability to discreetly mine information from a person that could have an impact on whether he is detained for years, bailed with severe conditions or sent back to risk of torture.

So, what do we have? We have everyone in the United Kingdom complaining about this system. The appellants are complaining; the special advocates have complained, as you well know; the courts have complained; the Joint Committee on Human Rights has complained. It is very difficult, then, to understand how Canada can contemplate grafting into its own laws such a severely defective system.

Bill C-3 is not a new and improved version of the special advocate system used in the U.K., even with the few amendments that have been made. It is, for all practical purposes, the very same one and it suffers the same defects. If Bill C-3 is passed, it will not afford an individual subjected to a security certificate the procedural justice to which he or she is entitled under human rights law or in accordance with the Canadian Supreme Court's decision in Charkaoui, and for that reason we ask you very respectfully to reject Bill C-3.

Alex Neve, Secretary General, Amnesty International Canada: Good evening, committee members. Amnesty International Canada welcomes the opportunity to be before you this evening. It is regrettable that it comes in a process that has become so rushed and hasty. I know you have heard that several times today. It certainly is a shame that the legislative process did not begin earlier in order to allow ample time. We urge you to take the time needed to ensure full and careful consideration, especially since this bill does not meet this committee's own recommendations on how security certificate reforms should proceed in Canada.

I will begin by sharing with you some of the key principles that Amnesty International has developed to guide reform of the immigration security certificate process, principles that derive from Canada's international human rights obligations. I will then highlight two of the key human rights shortcomings in Bill C-3's proposed special advocate model, and I will end with Amnesty International's key recommendation, which is that the special advocate model should be abandoned and, thus, Bill C-3 be either defeated or significantly amended. Instead, measures should be put in place to make it possible for the individual's own lawyer to provide effective representation. That is the approach that would best accord with Canada's international human rights obligations.

Amnesty International has developed a number of principles to guide security certificate reform. I will not take the time at this late hour to go through all of them. I just want to highlight four that we think are particularly key.

The first is that in no circumstance should any procedure — immigration security certificate procedure or otherwise — lead to the removal or transfer of an individual from Canada to a country where there is a serious risk that he or she would be tortured or subjected to other cruel, inhuman or degrading treatment. That, of course, is a fundamental principle that this committee endorsed one year ago in your report from your review of the Anti-terrorism Act, something we very much welcomed at the time.

Second, in no circumstance should any procedure lead to the removal or transfer of an individual from Canada where there are reasonable grounds to believe that he or she may have committed crimes under international law, including terrorism, if he or she would consequently escape facing justice for those crimes.

Third, immigration-based security procedures should be consistent with internationally recognized fair trial standards.

Finally, the right to full answer and defence must be scrupulously protected in any immigration-based security procedures.

The approach that is proposed under Bill C-3, unfortunately, does not meet these principles. In large part, that is because the bill fails to incorporate provisions that deal with many of the very troubling shortcomings inherent in the security certificate system, such as deportations to torture — a valuable opportunity to strengthen Canadian law not taken up.

The special advocate proposal, evidently intended to improve fairness, improves the system only marginally but, in the end, does little to ensure that fair trial rights are protected. As you have heard all day, I am sure, the proposed amendment mirrors closely — virtually identically — the model that exists in the United Kingdom.

As noted by the Supreme Court in the Charkaoui decision last year, that model has received significant criticism from U.K. parliamentary committees, U.K. courts, detainees and their advocates, and from special advocates themselves, and Julia Hall has shared some of that with you. Some of those advocates, of course, have stepped down from those positions rather than give what some have called a veneer of legality to a fundamentally flawed system. The proposed legislation fails to meet international human rights standards and suffers from the same deficits as the U.K. model.

Let me highlight two of the key concerns. First, special advocates do not have an explicit right of access to all relevant information in the government's possession. This is further aggravated by the minister's power to withdraw information once it is put before the judge.

The lack of a clearly expressed obligation on the government to disclose all relevant information has been a grave concern in the United Kingdom where special advocates have indicated that they are aware of cases where important exculpatory information was not disclosed to them. They have learned about this by being involved in one, two or three different cases and seeing different evidence in the different cases.

Second, the major concern that I am sure you have heard many times today is that the relationship between the named individual and the special advocate is fundamentally and inherently flawed. Bill C-3 precludes any communication with the named individual or anyone else following the disclosure of secret information to the special advocate unless the judge provides special permission. While it is, of course, open to the special advocate to seek that special permission, as we have heard, in the U.K., where there is a similar ability to seek special permission, the authorization from the judge allowing further communications has rarely, if at all, been given and is rarely sought. We hear this all the time from special advocates, because the questions that the special advocate wants to put to the individual must be vetted first by the government.

A U.K. parliamentary committee on constitutional affairs has recommended that it should be easier for special advocates to communicate with appellants and their legal advisers after they have seen closed material.

I of course do not need to remind you of your own thoughts on this issue, but it is notable that this committee made this precise recommendation one year ago in your report from the review of the Anti-terrorism Act where you recommended ``That the special advocate be able to communicate with the party affected by the proceedings, and his or her counsel, after receiving confidential information . . .''

There obviously are amendments that could go some distance in meeting these concerns and others. The question that arises is whether the special advocate model can be improved to such an extent that these serious flaws can be remedied.

In our view, it cannot. The improvements that are required, in particular, allowing an ongoing, substantive relationship throughout the course of the proceedings, would, if enacted, essentially replicate the role that the individual's own lawyer should play.

Therefore, recognizing the fundamental importance of the solicitor-client relationship in any fair judicial proceedings, as well as rights associated with choice of one's own counsel, all of which is of even greater importance in proceedings involving secrecy, Amnesty International has all along urged that Bill C-3 be amended so as to instead make it possible for the individual's own lawyer to effectively represent their client.

This is not an illusory, naive recommendation. The Canadian justice system has recognized that the need to mount an effective defence in cases involving sensitive evidence, such as that of a national security nature, requires creative solutions to the issue of disclosure. One such solution that has been used involves security clearing defence counsel and giving them access to the evidence, coupled with a limited undertaking not to disclose certain aspects of that evidence to their client.

Precedents for such a model involving national security material can be found in criminal cases, such as the recent Air India prosecution.

The Supreme Court of Canada suggested, in the M. (A.) v. Ryan case, which involved psychiatric privilege, that conditions can be placed on the disclosure of evidence: the imposition of conditions — on who may see and copy documents, for instance — to ensure the highest degree of confidentiality and the least damage to the protected solicitor-client relationship while guarding against the injustice of cloaking the truth.

The United States has used criminal law to try individuals for suspected terrorist activity, including through representation by one's own counsel. Ahmed Ressam was convicted of conspiring to blow up Los Angeles International Airport. His trial was a criminal trial, held publicly, without a special advocate. On sentencing, Judge John C. Coughenour noted:

We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel. . . . We can deal with the threats to our national security without denying the accused fundamental constitutional protections.

In conclusion, I would urge that the special advocate model be withdrawn. Instead, Bill C-3 should propose a process for security clearing counsel for the individual named in an immigration security certificate, coupled with limited and necessary undertakings that counsel will not disclose to his or her client certain aspects of the evidence to which he or she is given access.

Let me end by underscoring again how disappointing it is that Bill C-3 does not attempt to deal with related and very serious human rights concerns that arise in immigration security cases, including the vital opportunity we had in front of us to prohibit all returns of people to countries where they are at serious risk of torture.

Roch Tassé, Coordinator, International Civil Liberties Monitoring Group: Thank you, Mr. Chair. The International Civil Liberties Monitoring Group is a pan-Canadian coalition of 38 civil society organizations that came together in the aftermath of September 11, 2001, to monitor the impact of anti-terrorism measures on human rights and to advocate against violations of national and international human rights standards.

As you know, on February 23, 2007, the Supreme Court unanimously ruled that certain provisions of the Immigration and Refugee Protection Act were unconstitutional as they were incompatible with the Canadian Charter of Rights and Freedoms — notably with respect to the non-disclosure of information used in a decision to detain and remove a person under a security certificate. The court found that the use of secret evidence violates section 7 of the Charter, which guarantees the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principle of fundamental justice.

Chief Justice McLachlin, speaking for the entire court, wrote in paragraph 54 of the ruling:

Under the IRPA's certificate scheme, the named person may be deprived of access to some or all of the information put against him or her, which would deny the person the ability to know the case to meet. Without this information, the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations.

She went so far as to say, in paragraph 61:

. . . a person whose liberty is in jeopardy must be given an opportunity to know the case to meet . . . .

Here the principle has not merely been limited; it has been effectively gutted.

The only major difference between the security certificate that the court deemed unconstitutional and Bill C-3 is the introduction of the special advocate. Even here, the government has adopted a flawed and minimalist version of the special advocate, essentially the U.K. model. I will not get into everything that is wrong about it. You have heard much testimony today describing what is wrong.

Essentially, the presence of the advocate, while it might offer improvements over the current situation, ultimately does not resolve the basic problem that the individual is denied a full opportunity to know the case and to meet the case. Consequently, Bill C-3 does not overcome the Supreme Court's arguments and decision of illegality. It does not save or sanitize the security certificate process. There is still no due process, and section 7 of the Charter is still not respected.

Furthermore, Bill C-3 still discriminates between citizens and non-citizens. We would argue that this is in violation of article 15 of the Charter, which the Supreme Court did not fully address in its ruling.

Bill C-3 also perpetuates the threat of deportation to torture, and, failing deportation, it does not address the fundamental issue of indefinite detention.

Perhaps the most worrisome aspect of Bill C-3 is that it still allows a decision based on intelligence reports and intelligence conclusions rather than solid evidence that would be required in a court of justice, and with lower standards of proof than in a criminal prosecution. While the special advocate would be allowed to challenge those intelligence reports and conclusions, he or she would not have access to the whole CSIS file. More important, he or she would not be able to cross-examine the source of this intelligence — for instance, a detainee in some foreign jail or an agent from another country.

This is particularly troubling in light of questionable CSIS intelligence conclusions revealed by the Arar commission, the Air India inquiry, the cases of Abdullah Almalki, Ahmad Abou El Maati, and other cases in the public domain. It is even more troubling when we know that the bulk of this foreign intelligence received by Canada comes from the CIA, whose director told the U.S. Senate Select Committee on Intelligence just a few days ago that one fourth of the human intelligence reports in al Qaeda were obtained under torture by the CIA itself. This is the same agency that refuses to remove Maher Arar from the U.S. no-fly list on the basis of its intelligence conclusions. This is the agency whose flawed intelligence conclusions justify the sacrifice of hundreds of thousands of civilian lives in Iraq. This does not even include the intelligence provided by countries to whom torture has been subcontracted.

Under those terms, the people targeted by security certificates would still be denied a fair trial.

It is our position that the only way to meet the requirements guaranteed by the Charter and international covenants and in accordance with the principle of fundamental justice is through prosecution under the Criminal Code. Failing this, at the very least, any new procedures proposed under the Immigration and Refugee Protection Act should have standards of proof equivalent to those used in criminal prosecutions.

By merely deporting individuals alleged to represent a security risk instead of prosecuting them, Canada fails in its international obligation to prosecute acts of terrorism and to truly ensure the security of Canadians.

In conclusion, the new security certificate of Bill C-3 is essentially identical to the old, unconstitutional process. It fractures our justice system along the flimsy line of citizenship. It takes questionable CSIS and CIA intelligence, some of it acquired through torture, as absolute truth. At the end of the day, when it works, by the government's own logic, it frees potential terrorists into the world.

We know that this chamber is rushing to pass a law that goes against not only the values and rights that are enshrined in our Charter but against the most basic common sense. This chamber would do well to toss aside party allegiances and offer Canadians the sober second thought it is supposed to offer when our parliamentarians lose track of what is best for our country.


Dominique Peschard, President, Ligue des droits et libertés: Thank you for taking the time to hear our views concerning the bill which, for us, raises basic rights-related issues.

First, is the bill an adequate response to the Supreme Court decision? Does it adequately protect the Charter of rights? And what would be the alternative?

It should be recalled that the aim of the bill was to eliminate from IRPA aspects that were ruled unconstitutional in the Charkaoui decision. In its decision, the Court stated that the context of security certificates had terrifying consequences for the detainee and cited the Suresh decision as follows:

The greater the effect on the life of the individual by the decision, the greater the need for procedural protection to meet the common law duty of fairness and the requirements of fundamental justice under section 7 of the Charter.

The Court admitted that the measures required to ensure fundamental justice must take security requirements into account. However, the fact remains that, without real and substantial protection, the provisions of section 7 are violated.

The Court ruled that the main irregularity, as mentioned earlier, is that the regime authorizes the use of evidence that is never disclosed to the individual and provides for no compensatory measures.

The question is: By creating the role of special advocate, does Bill C-3 offer real and substantial protection in accordance with the principles of fundamental justice? In our opinion, the answer is a resounding no. I am going to reiterate some things that have already been said, but since I am the last witness this will perhaps serve to sum up certain points.

First, neither the person subject to the certificate nor the advocate will have access to the evidence against the person, and will not be able to test this evidence in an adversarial procedure that allows for full answer and defence.

Second, the special advocate cannot properly represent the person subject to the certificate because he is not authorized to communicate with the person without the judge's permission or to disclose the content of the secret evidence.

When studying this bill, like others, I drew on the British Columbia experience and the testimony given by Mr. Ian MacDonald before the Citizenship and Immigration Committee. Mr. MacDonald pointed out the flaws in this procedure, stating:


I don't think that any of the reviewing bodies have really dealt with the fundamental fault that seems to exist, and that is that the moment that the special advocates get the closed material, there is no kind of communication about the case.

. . . which means that you cannot properly challenge the evidence in the closed sessions because you haven't got a clue what the appellant's case on it might be.

One of the problems that I think we have had is excessive secrecy. There are all kinds of things that are kept secret that really shouldn't be.


Next, the cross-examination by CSIS officers would be, to all intents and purposes, useless, because, according to Mr. MacDonald's testimony, the members of the secret service generally have no personal knowledge of the facts they file as evidence.


We were never looking at original evidence. We never heard original witnesses. It was all based on assessments. So in a sense, it's opinion evidence all the time. And that's as far as one could go with that procedure.


Next, the judge would be able to receive evidence that would normally be inadmissible in a criminal trial, such as hearsay, opinions and so forth. The ministers who issue security certificates control the evidence. They have no obligation to present all of it, particularly evidence that may tend to exonerate the person subject to the certificate. Now we know that CSIS destroys evidence. Recently, one of the individuals subject to a security certificate, Adil Charkaoui, went before the courts when he learned that CSIS had destroyed recordings of his testimony.

The person subject to the certificate could be detained indefinitely without a trial, whereas if he or she was charged under the Criminal Code, he or she would know what the charges were, would be able to defend himself or herself and be acquitted or given a prison sentence with and end date.

The burden of proof is simply the obligation to determine the reasonableness of the certificate, which is nothing compare to the burden that is always required when a person is likely to lose his or her freedom, that is, to prove beyond a reasonable doubt.

Last, as mentioned earlier, a person may be extradited for torture, even if the Minister, Stockwell Day, denied this during his appearance before another committee on November 27, 2007. May I remind you that the United Nations Committee against the torture ruled against Canada on November 16, 2007, in the Bachan Singh Sogi, an Indian national deported by Canadian authorities, despite the fact that the committee against torture made two requests to stay the removal proceedings?

In closing, the bill does not satisfy the requirements of the Charkaoui decision, which reads:

The infringement of section 7 is not saved by section 1 of the Charter... because IRPA does not minimally infringe upon the rights of the persons named in a certificate.

It is clear that the solution proposed by Bill C-3 does not pass the test of minimal infringement on the right of a person's name in certificate and thus paves the way to a new Charter challenge before the courts.

In our opinion, terrorism cases should be governed by the Criminal Code. In Quebec, the Code has been used successfully against organized crime and biker gangs, with the result that dozens of people were charged and are now serving prison sentences. This was done thanks to criminal trials with evidence that was in compliance with the rules of conventional law. In this area, there are also sensitive issues, such as the need to preserve the anonymity of police informers or to keep investigation methods or strategies secret.

Accordingly to Mr. MacDonald, it is possible to fight terrorism using criminal law procedures. Once again, in his testimony here, he stated:


Secondly, when people are on your radar, assessments and information of the intelligence services, it seems to me, need to be turned into evidence so that the suspected perpetrators can be arrested, tried, and convicted before the courts in open and fair trials. And that in fact is being done in the U.K. on a very big scale now.


As mentioned earlier, we are adopting a system that has been shown to be ineffective in Great Britain and which is being challenged there. Increasingly, Great Britain is opting for criminal procedures.

As mentioned earlier, by deporting people that Canada considers too dangerous, they end up in other countries where they will be just as dangerous, and thus we are not fulfilling our obligations in terms of security.

We recommend the elimination of security certificates so that people will not be able to be deprived of their freedom and deported from Canada using secret evidence. We also recommend that Canada's fight against terrorism be conducted in compliance with the rules of due process and international law.


Senator Baker: I will start with the last presenter and his comments regarding testimony that was given previously in the other place relating to the procedures followed in criminal law addressing similar problems that we have in the case of the bill that is before us, and that is the testimony that you were referring to.

You referenced biker gangs and so on, where information had to be withheld from the court as to informants and so on under the criminal procedure. An information is sworn and put in a sealed packet at trial, and then there is a motion, if the person is charged, to then open the sealed packet for disclosure purposes, at which time the information that is sought to be withheld, because of security or informants, is blackened out and withheld from the accused. However, what remains would have to form the reasonable grounds to believe that grounded the authorization to make the search warrant and arrest in the first place.

However, would you not agree that the distinction with the particular cases we have here is that the examples you referenced were used in the context of actual charges being laid, whereas in this particular case there are no charges and we have this extraordinary procedure of detaining persons on a faint suspicion that perhaps they are connected with some criminality? Do you still believe that the same system applying under criminal law could be transposed into this circumstance that we are dealing with under this bill?

Mr. Peschard: One problem is that there is the distinction between intelligence work and criminal prosecution. After the Macdonald commission, when activities of the RCMP were —


Because of inappropriate activities carried out by the RCMP in the area of intelligence, a civilian intelligence service was created to assess threats against the country. This is an intelligence service, whereas the police were to focus on criminal work. However, it would appear that information obtained during intelligence activities are used against people as part of procedures relating to the issuance of security certificates, and that this information results in the equivalent of criminal sentences. The people in question are then imprisoned for indefinite periods.

In my opinion, the solution is the following: when intelligence services accumulate evidence that gives them reasonable grounds to believe that a given individual is participating in or planning activities that threaten national security, a police inquiry should be conducted for the purpose of gathering evidence to bring that individual before a criminal court.

In other words, what is being proposed is that once there are reasonable grounds to believe, the security certificate is issued, whereas any reasonable evidence obtained by the intelligence services should be transferred to the police so that a criminal investigation can be conducted in due form. According to what Mr. MacDonald said, that is what is done in Great Britain.


Senator Baker: It is a very interesting and solid proposal that you are putting forward. We have heard over the past nine and a half hours some rather interesting proposals to address this problem we have before us. Complicating the matter even more is that as we are listening to you, the final witnesses, we are not only under the gun by the House of Commons to pass six crime bills before the end of the month, but we have a declaration by the Supreme Court of Canada that everything must be finished on this particular bill by February 23. Everyone has asked that we do it right, has said that this the opportunity to get it right. Do you have any suggestions as to how we do that when time is of such a pressing nature? I have been in Parliament for over 30 years, and I have followed the law being made and amended. It seems to me practically impossible, and I tell my colleagues here that it is impossible to do the final job on this bill in the next four days. Do you have any suggestions at all regarding this entire matter? I am seeking some advice for my own personal edification.

Mr. Neve: I would begin by reminding senators that the Supreme Court did not say that there was a year in which to pass Bill C-3. The Supreme Court said there was a year to get it right and come up with a system that would meet Charter concerns. In our view, what you have in front of you does not satisfy what the court has asked Parliament to do. We therefore think you should step away from what you are being asked to do in these pressure cooker, last-ditch few weeks and refuse to pass this legislation. Does that mean that we will have a national security crisis erupt in Canada overnight? I am sure you have had numerous witnesses appear before you today who have highlighted the many other provisions that exist in both Canadian criminal and immigration law to deal with concerns, if they arise. Instead, we would ask of Parliament, and we know this means going back to the beginning, a new legislative process that gets it right.

Senator Baker: I know this is the point that you would like to make if you had the opportunity to ask the questions, Mr. Chair. The Supreme Court of Canada, however, did not suggest that we terminate the legislation. In fact, the Supreme Court of Canada in this decision used very careful language. The Chief Justice went through about 70 paragraphs explaining, as you explained to us, that a person must know the case to meet and the case against them. Then the Chief Justice said, ``However, this must be balanced.'' I can get the paragraph for you. I am sure you have read it. It suggests to me that the Supreme Court of Canada was saying, ``Look, we recognize the necessity of this type of legislation, but it must be done correctly,'' as you point out. You were suggesting that if we cannot get it right, we should just discard the legislation, which is not what the Supreme Court of Canada has suggested.

Mr. Neve: I am not suggesting that you discard it for all time. The process should begin again. You have obviously heard a multitude of different proposals as to what the proper remedy is. I have talked to you about the need to abandon special advocates and instead focus on empowering lawyers. You have heard others talk about the fact that immigration law should not play a role here and it should be about criminal proceedings. You have heard other recommendations around proposed enhancements of the special advocate model itself, although those are things that would need to be properly debated at both the House level and here in the Senate to decide what the right approach is. In our view, that should not be determined by the artificiality of a one-year cut-off, even though it is a judicial decision.

Mr. Tassé: You also heard this afternoon from Johanne Doyon that the government could table a motion in the Supreme Court to extend the time period to allow for a proper process.

Senator Jaffer: My question to all four of you is this: Do you think that this special advocate would be more palatable if we used the SIRC model and the whole file would be available to the special advocate, and also the special advocate would have continuous contact with the person named?

Mr. Neve: We would say it would be more palatable. We do not feel that that is the best solution here, as I have stressed to you. We feel the solution should lie in equipping the individual's own lawyer with the ability to provide them with that representation.

In many respects, it is a shame that Bill C-3 did not begin with that as the proposition, that instead we have begun with this bare minimum, U.K, special advocate-lite model and did not begin the process by considering, at the very least, the best possible special advocate model there could be.

Mr. Tassé: Even with that improvement, that special advocate could still not cross-examine the source of that intelligence. That improvement would not address the fact that we are dealing with intelligence conclusions and not with evidence.

Senator Jaffer: What you are saying, Mr. Neve, is that the lawyer of the person named should look after the information. The challenge with that for the government is information that they cannot share — the secret information. How do you overcome that challenge?

Mr. Neve: Obviously, lawyers would need to receive security clearance. We do recognize and acknowledge that there may be instances — and there are lots of instances of this happening elsewhere in Canadian law — where the lawyer would have to give an undertaking to the court that there would be some limited aspects of the evidence that he or she would not specifically be able to disclose to their client. We seek and obtain undertakings from lawyers all the time, and we do rely upon them in keeping the wheels of justice moving.

Senator Andreychuk: First, I want to thank Mr. Neve for coming to testify to two committees today. We rushed him through the other one so that he could make it here on time and he has patiently been waiting for two hours, so I apologize. If you have anything to give in longer form to the Standing Senate Committee on Human Rights, please do so.

I have had a conundrum since we started this. As I said before, I sat on a precursor committee to this; from time to time, the Senate has had oversight committees to look at the issues of security and intelligence. There were some in the 1980s and the 1990s, and I was privileged to sit on one of those, and it gave me a lot of information about our intelligence services.

One of the things we said was that intelligence is very important, done properly. Often, it is drawing the lines between all the dots; when you get it right, you get all this disparate information. How you put it together is good for Canadians as a whole, whether they find themselves before a process or under our protection.

In the security certificate, which I also followed in the Immigration and Refugee Protection Act, and previous to that we had some sections, the dilemma is that the security certificate came into being as a process because people come to our shores who may have committed terrorist acts or other acts in another country. They come, either escaping or intentionally, onto our shores. To be able to get sound evidence, it is not Canadian-soil evidence, if I can call it that. It comes from somewhere else to prove it.

The dilemma is that we may get people on our shores where we cannot make a criminal case against them, but there is a reasonable understanding that crimes of a horrific nature were conducted elsewhere. The opposite dilemma, which this committee has struggled with as well, is how to ensure, when someone comes to our shores — either refugees or immigrants in the permanent residents' category, but not citizens — that they are treated fairly, that natural justice applies to them and they are not unduly under scrutiny. There is that balance.

We reached in this committee the notion of the special advocate, because it seemed to fit our system. It certainly was not my idea but one that we embraced. I cannot recall in detail, but we looked at the French system and at the Spanish system; of course, theirs is a very different system. It seems to me that we will always have this struggle.

As the courts said, the security certificate was not unconstitutional. They said that you must do more to protect the individual who will be the subject of the security certificate.

What could we do more than trying to find that balance, which is what I think the court talked about and what our committee, in our report, talked about? We put in a recommendation that we need a universal response, we need more UN involvement to get at terrorism, and we cannot do it alone. What more can we do than struggle to try to fix it?

We had ministers come before us and tell us that they got it right. I do not think we thought that they got it right. We thought they gave it their best efforts. Again, we have another minister who said ``this is better than the others.'' What else can we do but that?

That is the struggle that I have, namely the protection of society, but also the protection of the individual, so the route of the special advocate was taken. SIRC, in the end, could be a similar model, but it will not be ironclad either. What more can we do on the balance than to continue to struggle and continue to use our oversight as parliamentarians to ensure that we shed light on it and that it is not forgotten and that it does not go off the rails any more than the legislation contemplates?

Ms. Hall: I am uncertain that any other model beside the special advocate model was ever deliberated here in the aftermath of the Charkaoui decision. The decision has been read in numerous ways by many different actors, but that decision did not say to the legislators in Canada, ``go back and draft up a special advocate system.'' It was a subordinate clause in the decision that said, ``Maybe this could be an option.'' Right?

That was largely because it was out there in terms of the Commonwealth and in terms of the adversarial system, where I think we all get the idea that maybe that is a better fit for Canada. I would ask this to my other panellists as well: Were any of these other options ever contemplated? Was civil society consulted in advance so that all of these issues and all of these ideas were on the table for thorough consideration before anything was drafted?

My strong impression is that there was a default right to the special advocate system, and then an attitude, unfortunately, that this was all a done deal. Now here we are two weeks before the deadline, and it increasingly looks like it is a done deal.

I really do not understand why civil society and academics and think tanks were not involved right from the beginning, saying ``There are nine options on the table. Let us have a very robust discussion about each of these nine options.'' I do not think that process ever occurred up here. It was a great missed opportunity.

Senator Andreychuk: Perhaps to follow up, Ms. Hall, that was the point I was trying to make. Many of us have been struggling with this issue year in and year out. We have attended conferences; we get the literature. A book comes out and I have it.

I do not think those groups have been excluded. I think the conundrum is there. We hear very clearly some people saying no security certificates and let us go to the criminal system. We heard that five years ago and we are hearing that again.

What I am trying to ask is what else could we hear? I have heard Amnesty International Canada and Human Rights Watch tell me strongly that the balance needs to be corrected. What more could I hear? It is 9:40 p.m., so you might want to make it short.

Mr. Neve: As I did in my presentation, I would remind you of your own work — your own conclusion at this committee. Obviously, Bill C-3 proposes a lesser model than what this committee felt was necessary a year ago, which, if you go the special advocates' model, was the route to go. I respectfully say to you as a committee that I find it hard to understand how you could accept this model at that stage — given that I and others appeared before you at that time. That was a lengthy and very deliberative process with good exchanges. Of course, it was much wider than just security certificates and special advocates, but that was obviously your considered view at that time. Obviously, you will ask yourselves whether you think something has changed within the last year such that that is no longer the recommendation this committee stands for with respect to the way forward.

I also want to address the balance issue. We are always being told about the security and human rights balance. From a human rights perspective, it is not about balance. It is all about one and the same thing.

The things you have highlighted are human rights imperatives as well. For example, the concern about making sure that people do not get away with it, whether they be suspected terrorists, accused war criminals or people being accused of having committed crimes against humanity, if impunity reigns and they get away with it, that is not just a security shortcoming; it is a very serious human rights failure as well.

Certainly the Canadian immigration security certificate process speaks to this, but we have had wider concerns in the Canadian immigration context. It is not about balance. It is always about preferring the immigration route, which almost always gives rise to one of two concerns. First, there is injustice, which are the cases where the person will now become the victim of a serious human rights violation, and we have become trapped in these cycles of terror and torture.

Second, there is no justice, where the person walks away at the other end of a deportation having gotten away with war crimes or being free to continue with their plans for a terrorist attack. That is not about balance; that is about getting it wrong on all counts.

Senator Day: First, I want to comment with respect to Ms. Hall's comment. In part, that was confirmed by Mr. Neve; namely, that the special advocate provisions were recommended by this committee before the Supreme Court of Canada came down with its decision. That was an area that the Supreme Court of Canada might have looked to for some guidance on what they should do. Unfortunately, they did not go quite as far as we would have liked in terms of the ability of the special advocate to talk to the named person. That is one of the points I wanted to ask you about.

In pointing out the criticisms of the U.K. process, you indicated that in your conversation with the barrister you asked how many times an application had been made to a judge to see further evidence or to have further discussions with the named person, and her reply was that it was not very often. You then asked, ``How would we know?'' I assume from that question that because all of this is in camera and secret, we do not know how many applications have been made. Is that correct?

Ms. Hall: I think that is correct, although it is clear from conversations with special advocates, whether through the study or my own conversations with them inside hearings, that they understand how limited they would be.

One thing we have not discussed so much here are the lawyering ethics issues involved. The special advocates understand that if they were to apply for judicial authorization, they would have to do it in writing, and those questions would be fully vetted by the government.

Many of you are lawyers. I imagine you would understand that there is an ethical dilemma inherent in that process. Their chances of success are very low, but the process itself is fundamentally offensive to those who have a real understanding of lawyering ethics.

Senator Day: I have two other, related questions. One is with respect to evidence of torture, and more than one of you has mentioned that.

An amendment was made here regarding one proposed section and then another amendment was made. Both of these amendments were made to this bill in the House of Commons at committee stage. One excluded any evidence that can reasonably be shown to have been obtained by torture, and the second one is the solicitor-client privilege between the special advocate and the named person. The proposed section was amended to ensure that information between the special advocate and the named person would be protected.

Do those two amendments go far enough? Are you aware of those? Are you happy with them?

Ms. Hall: On the privilege, in practice, the special advocate can meet with the named person only in advance of reviewing the secret evidence.

Senator Day: Yes, or with permission from a judge afterwards.

Ms. Hall: Yes. Let us assume that it is correct that they will not get that permission. The lawyers I have talked to have been categorical about those initial meetings. They say that the initial meeting is where the special advocate sits with the named person and holds his hands and says, ``You are going to have to trust me.'' That is the crux of that meeting.

If that is what is privileged, then, in my estimation, that solicitor-client privilege as built into this bill is virtually meaningless.

Mr. Neve: With respect to the issue of evidence obtained under torture being excludable, obviously we welcome that provision in the bill. However, I would underscore that that was already the state of Canadian law. There is not anything in Canadian law anywhere, be it in statute or in common law, that does not clearly ban and prohibit evidence obtained under torture.

The challenge is that in an unfair process of secret evidence, it is difficult and often virtually impossible to ascertain whether the evidence was obtained under torture such that it will be excludable. The need here is not so much to establish some new norm in Canadian law that evidence obtained under torture needs to be kept out of legal proceedings. We have that norm. The problem is, in an unfair process, it is almost impossible to enforce the norm.

Senator Day: It is interesting that Minister Day this morning, maybe eight or ten hours ago, said that that amendment was one of the major challenges he had in the other place in dealing with Bill C-3.

Mr. Neve: I find it very distressing and disheartening to know that there were people who would have been opposed to enshrining what is already a cardinal principal in our legal system and is a crucial international human rights standard.

Senator Day: Mr. Tassé, do you have a different or similar point of view to
Ms. Hall with respect to solicitor-client privilege? I think you mentioned that issue as well.

Mr. Tassé: No, I did not.


Senator Day: Or maybe it was Mr. Peschard concerning the information shared between special advocates and designated persons.

Mr. Peschard: I agree with what Ms. Hall said, that is, that the special advocate is not really the counsel of the person named in the certificate and the communication between the two is so limited that the fact that it is protected is virtually meaningless.

If the security certificate procedure, whatever form it takes, is not adopted before the fateful end-of-February deadline, our security will presumably be threatened. But security certificates apply only to non-citizens. Does that mean that we are under a perpetual threat? Or does it mean that only non-citizens are injurious to national security? There is no security certificate type of protection against Canadian citizens, and yet we do not live in a perpetual state of danger. I do not see the justification for pushing this bill through.

To come back to a question asked earlier, concerning the role of the Supreme Court, the latter's mandate is to determine whether a piece of legislation is constitutional, not to dictate how Parliament should ensure national security.

In other words, what this decision tells us is that the procedures outlined in the Immigration Act were unconstitutional, but the Supreme Court is not requiring Parliament to renew the security certificates in one form or another.


Senator Tkachuk: It is always difficult for governments to deal with the question of security. I think Mr. Zuberi said that terrorism is a unique thing; it is global, and the world has changed, as has how we may fight people who may want to try to hurt our way of life and our ability to live a free life as we live now.

What we have here is a difference of opinion, really. Some have said that we do not need any law at all; some have said that we should just deal with it under the Criminal Code and that we do not need a special provision. Some have said to use the SIRC model; some have said, perhaps what you are saying, that we just give them all the information no matter what our feeling is about the matter. The government says that perhaps there is a different way to do it.

What makes you so sure that the law would be overturned? Is it impossible that the Supreme Court would say that this law is just fine? What would you say then?

Mr. Neve: I would not be bold or rash enough to predict what the Supreme Court will or will not do in a judgment.

Senator Tkachuk: But you are.

Mr. Neve: Our opinion is that this does not meet the provisions of the Charter, at the very least because there are better models: the enhanced special advocate model as has been highlighted, among other things, even one here from Canada, the SIRC model, which provides stronger rights protection. You will hear differing views from all of us as to whether that model goes far enough, but it certainly provides stronger rights protection than what has been afforded in Bill C-3.

Senator Tkachuk: Are any of the four of you arguing against the actual principle of having a law like Bill C-3, or are you just arguing that the mechanics are wrong?

Ms. Hall: All we can do is relate this back to what the Supreme Court identified as the defect in Canadian immigration law, which was the use of secret evidence to which the named person did not have access and therefore could not effectively mount a defence against. If Bill C-3 produced a system whereby a person would have enough information to have a level of process that would allow them to mount a defence, I do not think any of us would have a problem with Bill C-3. However, that is not what Bill C-3 does.

This particular bill does not meet the requirements of the Charkaoui case, in the opinion of Human Rights Watch. If Bill C-3 had provisions in it that permitted the named person enough information to mount an adequate defence, we would have no problem with it.

Mr. Neve: I think it is also notable that within the Charkaoui judgment, while the court does take note of the fact that the special advocate model in the U.K. exists, in the next paragraph they go on to note that that system is criticized from many of the sources you have heard about today — from parliamentary committees, former special advocates, et cetera. The court itself has already signalled that they know that that model, which is what we see in Bill C-3, was not a perfect one.

Senator Tkachuk: We talked about the question of the discourse of civil society. When the Supreme Court decision came down, were there attempts by your organizations to have the government adopt a particular point of view in briefs or letters to the ministers, letters to members of Parliament or to the Prime Minister? Did you have conferences or meetings about it? Did you participate in this failure of civil society?

Mr. Neve: There was a great deal of activity. I am sure every organization was pursuing it in different ways.

Senator Tkachuk: How did you pursue it?

Mr. Neve: I will be very honest with you. We were anticipating that the government would launch some sort of more formal consultation process before legislation was actually put in front of the House. We were disappointed that that did not happen. Instead, we found legislation introduced at quite a late stage — eight months or so after the judgment came down.

As we sought to engage the government with respect to the bill that was proposed and ask questions regarding why this model was used and not others and ask whether the nine options Ms. Hall suggested might be out were considered, we were told, ``We cannot engage in that debate now. It is in front of Parliament. The debate needs to happen there.''

Senator Tkachuk: If the law is passed, what happens?

Mr. Neve: Do you mean what happens legally?

Senator Tkachuk: Yes.

Mr. Neve: I cannot predict what decisions the government will or will not make as to whether they will continue to proceed with the security certificates against all of the individuals who are currently subject to them.

Senator Tkachuk: They will have to redo them, correct?

Mr. Neve: Using the special advocate model.

Senator Tkachuk: All five will have to be retried, so to speak. I am not a lawyer. However, the security certificates will have to be renewed, will they not?

Senator Day: No. They stand.

Senator Tkachuk: I am asking that question to the witnesses. If you want to be a witness, Senator Day, sit over there.

Mr. Neve: They will be subjected to a different process now which will involve the special advocate. Will their lawyers likely challenge the special advocate model in those hearings? I would be surprised if any of them did not. Will it eventually work its way back up to the Supreme Court? Very likely. Is that the wise and proper strategy to pursue here when so many of the shortcomings are already known, are on the table and could be remedied? In our view, it is not.

Senator Tkachuk: Okay.

Senator Joyal: The common denominator in the conclusions that you and most of the witnesses came to today is that there are sufficient questions about the constitutionality of the Bill C-3 approach that it would be better for this committee or Parliament generally to continue to study the issue and try to find the approach that would best meet the test of the Supreme Court. The test of the Supreme Court, if I can put it this way, is that the consequences of a certificate could be unlimited detention or deportation to a country where there is a risk of torture. That is probably the heaviest penalty that someone might incur under the Criminal Code. The system needs to be re-thought in a way that the Charter rights of a person are best assured. However, on the other hand, you recognize that there is a need to protect intelligence, but the conclusion of that intelligence must be vetted by a third party that would assess its reliability in the procedure against the person.

Does this meet what you have in mind or, in your opinion, is it incorrect?

Ms. Hall: Given the experience in the U.K., which is the only other jurisdiction where we see these kinds of problems, it remains unclear to me why there seems to be the inability to get beyond the notion that there needs to be a third party. As a lawyer, I find it offensive that the bar as currently constituted — persons with very good records, ethically — would not be able to be security cleared to represent his or her client.

We see lawyers making undertakings in drug trafficking cases and in other kinds of national security-related cases — for example, with respect to transfer of information about nuclear materials. We do not invoke special advocates in those cases. We assume that lawyers operate ethically and within the canons of the law in every other respect. I do not believe that they cannot do the same when it comes to national security-related cases that deal with acts of terrorism.

Senator Joyal: In other words, your argument is that if the person happened to be a Canadian citizen, they would be prosecuted under the Criminal Code. If there is intelligence material that needs to be brought to the court as an element of proof, that element of proof would be subject to the rules of proof — the Canada Evidence Act and Criminal Code provisions — in a way that maintains the confidentiality of the materials to a level to maintain security and proper procedure for the person to be tried.

Ms. Hall: That is what would happen if someone were a citizen.

Mr. Neve: That is what happened in the Air India prosecution.

Ms. Hall: That is what should happen here.

Senator Jaffer: What is happening in Toronto?

Senator Joyal: In Air India, there have been mishaps all along the course of the investigation. I do not want to enter into it, because there is another authority outside Parliament.

Mr. Neve: Not with respect to that particular issue, however. I have never become aware of allegations that defence counsel is accused of having breached undertakings in the Air India prosecution not to disclose certain aspects of the evidence to their clients. There were obviously many other problems and shortfalls in that prosecution.

Senator Joyal: You would have hoped that we had the time to examine the various possibilities and models that might exist before we conclude, in a definitive manner, what kind of system Canada should have to maintain its respect of the international conventions and its own Charter.

Mr. Neve: I assume that a year ago, when you did the review of the Anti-terrorism Act, you did do some of that, and you came to a certain recommendation at that stage, which certainly was a stronger recommendation than what you see in Bill C-3.


Mr. Peschard: Obviously we do not agree with the bill as it is currently drafted. We could continue trying to find something more satisfactory, but if we all start with the premise that the individual and his or her lawyer are entitled to know the evidence and, I would add to what was said previously, that in order for the evidence to be admissible, we use the same criteria as those used for criminal proceedings, in other words that we disregard those aspects that cannot be proven to the court, or hearsay, or things like that, once that has been done, I do not see how we would have any need for a special procedure under the Immigration Act, given that we are not going to try to add to the Immigration Act or reproduce in this legislation those procedures which are already provided for in criminal law. I would really like us to continue thinking about the amendments that could be made to Bill C-3, but if our objective is to attain this level of protection and respect this principle of fundamental justice, I find it difficult to understand the purpose of a measure designed to amend Bill C-3.


The Chair: Thank you very much. We will be thinking about them overnight. I believe we have a consensus to adjourn now after seven panels over ten hours. I appreciate the commitment everyone has made, because we are under a deadline.

We already have permission to sit tomorrow at 2 p.m. We will be sitting tomorrow while the Senate is sitting. The room is yet to be determined.

Senator Stratton: What is the subject of the meeting?

The Chair: Clause by clause.

Senator Jaffer: You are saying ``consensus.'' This is the first I am hearing about it.

The Chair: The steering committee members were holding little chats. Do you wish to —

Senator Jaffer: I would like to have known about it before you said there was consensus.

The Chair: We were listening to the witnesses. I apologize.

The committee adjourned.