Citizenship and Immigration Committee on April 26th, 2007

[Ian MacDonald]

I think it would be very difficult, because I've seen the amount of time and the number of people who are used to collect, for example, telephone evidence in terrorist trials. There is an enormous amount of legwork that's involved, particularly if you're looking at sources of e-mails or mobile phones--an enormous amount of work.

As a single person, you certainly have no chance of doing it. The kind of team that you would need to do it.... In criminal trials it's evidence that is gathered by very experienced police officers and it's shared with the defence.

[The Chair, Conservative, Norman Doyle]

Okay, thank you, Mr. MacDonald.

Mr. Telegdi and Madam Faille, and then Mr. Siksay. We'll shut it down then.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. MacDonald, history has shown us that the most efficient perpetrator of terror is the state. Setting up a “them and us” kind of scenario really reminds me of the O.J. Simpson effect, where, as you know, we had a jury that would not convict O.J. Simpson. The response of the black population in the state was essentially that O.J. Simpson was innocent, and the response of the rest of the population was that he was guilty. And that's what I mean by “them and us”.

Given Canada's makeup, we represent the world essentially in our demographics, in the population make-up, so we're all in the same boat, and we desperately need people in the Muslim community. That's where the problem is coming up and we need their help and cooperation. If we create a “them and us” mentality, we're going to have a hard time achieving that.

Have you folks talked about that in England?

[Ian MacDonald]

Yes, I've certainly come across it. I haven't mentioned it in my paper, but in fact particularly after 7/7 there was an enormous increase in racially aggravated crimes throughout the city areas where black and Asian populations lived.

Of course the attackers couldn't distinguish a Sikh from a Muslim, so they just attacked them anyway. Over one month there was an increase of something like 1,000 attacks, and in many of the cases the attackers referred to the victim either as a Bin Laden or a Saddam Hussein. The figures have been published by the criminal prosecution service...quite a dramatic increase.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. MacDonald.

Madam Faille of the Bloc party.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

If, acting as a special advocate, you find that there is insufficient evidence to maintain the security certificate, what steps do you take to clear the person' s name or to have him released from custody?

[Ian MacDonald]

First of all, I would imagine that one of the questions that arises is whether the person should be held in detention or on bail, and in fact a number of the Belmarsh detainees, because their mental health had deteriorated to such a very large extent, were eventually let out on bail. So that's one opportunity, but in a sense you're looking at a different process. If people are suspected of being involved in terrorist activities, then my view is that evidence ought to be sought against them, and they ought to be processed through the normal criminal courts.

There are wider questions about deporting suspected terrorists, because in a sense if you're removing them to another country where they're going to be free, then all you're doing is exporting the possibility of them carrying on their terrorist activities in some other place.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I asked you the opposite question, Mr. MacDonald. If, upon examining the evidence adduced, you find that it is inadmissible or inconclusive in terms of maintaining the security certificate, how do you go about getting the security certificate quashed?

[The Chair, Conservative, Norman Doyle]

Brief response, Mr. MacDonald.

[Ian MacDonald]

No, because the role of the special advocate is the role of an advocate, not a judge. So you always have to be able to convince the judge. In all the cases I was involved with, not only did I cross-examine security officers as witnesses, but I also made a closing speech to the court. The final arbiter was the court. Of course, in these situations it's not only special advocates who are at a disadvantage as well as the appellant, but the judge is at a disadvantage as well.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. MacDonald. Thank you, Madam Faille.

Mr. Siksay.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. MacDonald, when you wrote your letter of resignation, you used some very strong language throughout, but you also characterized the personal dilemma you faced very succinctly. You talked about how “My role has been altered to provide a false legitimacy to indefinite detention without knowledge of the accusations being made and without any kind of criminal charge or trial. For me, this is untenable.”

Could you elaborate a bit more on that as a way of concluding, and if anything has changed in the system in the U.K. now that might change your perception of that system?

[Ian MacDonald]

Yes. It was a balancing exercise, because initially I stayed in there, after the new legislation was introduced in 2001, because like other special advocates and like most lawyers, I thought I might be able to make a difference by staying in. But eventually I felt I had to balance what little difference I might make by being in there against the fact that I was legitimizing a form of indefinite detention, on reasonable suspicion merely, for an indefinite period. I felt in conscience that I couldn't stay on there, and I felt particularly, in light of the House of Lords judgment, that the view I took was a very tenable one.

Unfortunately, only one other special advocate resigned at the time I did. The others decided to stay on. And I have never publicly criticized them and I won't do so now. It was a very personal decision. It seemed to me that the wrong balance was being struck with the whole way in which these particular people were being treated, because at best, at the very highest, they would be grade-C terrorists, and one has to look at whether there really was a serious threat to the life of the nation in Great Britain at the time.

Of course that is a personal opinion, not me speaking as a lawyer.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. MacDonald.

On behalf of the committee, we want to thank you for giving testimony today. Unfortunately, we're out of time, and we have other committee business that we have to get to, but, as you can tell, the committee was very interested in what you had to say.

[Ian MacDonald]

I'm very pleased to have had the opportunity to talk to you and share some of these thoughts with you. I hope they will be of assistance to you in all your deliberations.

Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you, sir. Goodbye.

I guess we'll have to suspend for a moment to go in camera.

[Proceedings continue in camera]