Public Safety Committee on Nov. 29th, 2007

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order. This is meeting number 5 of the Standing Committee on Public Safety and National Security.

Today, we are examining Bill C-3, An Act to amend the Immigration and Refugee Protection Act, focusing on certificates and special advocates, and to make consequential amendments to any other acts.

For the first hour this morning we would like to welcome two witnesses to our committee, Professor Craig Forcese and Mr. Lorne Waldman.

We have one hour with you gentlemen. You may make an opening statement for approximately 10 minutes. I suppose you know the practice at the committee is then to go around, and I'll offer questions and comments.

Ms. Priddy, do you have a comment?

[Penny Priddy, NDP, Surrey North, BC]

With the greatest of respect to the witnesses, this is not about the witnesses who are here, and who I know.

Before we begin, I want to put this on the record, Mr. Chair. Even since our last discussion, I have had a number of letters from people who are concerned, such as Amnesty International, Human Rights Watch, etc., that they have not been--

[The Chair, Conservative, Garry Breitkreuz]

With all due respect, that is probably a future business of the committee issue. I don't know if we should take any time right now.

[Penny Priddy, NDP, Surrey North, BC]

I'm just putting it on the record. I'm not asking for a discussion about it.

[The Chair, Conservative, Garry Breitkreuz]

Could you wait until it's--

[Penny Priddy, NDP, Surrey North, BC]

If it goes under future business and it's in camera, then it doesn't get on the record.

[The Chair, Conservative, Garry Breitkreuz]

You'll have a chance to do this when it's your turn.

[Penny Priddy, NDP, Surrey North, BC]

All right, thank you. I'll use it then.

[The Chair, Conservative, Garry Breitkreuz]

Thank you. Otherwise, you're going to take time away from our witnesses.

I think without any further ado, we'll go ahead.

Which of you gentlemen would like to go first?

[Lorne Waldman, Barrister and Solicitor, As an Individual]

I'll go first. As lawyers, we have a hard time keeping to our time limits, but I have my watch here and I'll try to do five minutes, and Professor Forcese will do five minutes as well.

First we'd like to thank you for the invitation. I was asked by many of my friends to echo the concerns of Ms. Priddy. There are many people who would like to speak, and we received numerous e-mails asking the committee to consider having more hearings because we believe the bill is extremely important and goes to very important issues of the rule of law. So we're expressing the views of many other organizations that asked for the opportunity to speak.

I thought I would start off by saying I've done security certificate cases. I don't know how many other witnesses before the committee have done them, so by an example, I wanted to tell you what it's like. I used it recently in another context, but I think it serves the purpose.

Imagine that Professor Forcese gets charged with murder and he asks me to represent him and I say, “Well, we don't know who you've killed, we don't know who the witnesses are, and we don't know what the evidence is.” So I ask Craig, “Did you kill anyone? Who did you kill?” He says, “I didn't kill anyone.” “Well, who do you think they might think you killed?” That's what it's like to defend someone under a security certificate.

You don't know the evidence. You don't know the witnesses. You don't get the opportunity to challenge them within the context of the hearing process. All the substantive evidence is sealed and is only reviewed by the people who have access to the in camera hearings.

That's why we both believe that security certificates are fundamentally unfair and that the Government of Canada should explore other alternatives, rather than security certificates, to deal with this very difficult problem.

Having said this, Professor Forcese and I embarked upon a study because we knew this bill was coming forward as a result of the Supreme Court of Canada decision in Charkaoui. We did the study with a view to trying to look at the other models that are out there and to consider the extent to which the other models addressed the concerns we had.

The Supreme Court of Canada basically instructed Parliament to try to come up with a model that was as close as possible to allowing full due process rights while permitting some evidence to be held in camera. They considered several options in the Supreme Court of Canada decision, one of them being special advocates, the other being SIRC.

The important thing to understand is that if you're going to deprive the person accused of being a member of a terrorist organization access to the evidence that is being used against them, so they and counsel can effectively challenge it, you have to try to come as close as humanly possible to some kind of alternate model that meets the requirements.

Our study of the special advocate model, which we understand was the model for this legislation, led us to believe that it's woefully inadequate. Indeed, there have been so many criticisms of it that there have been significant changes to the model in the United Kingdom, many of which have not been incorporated into this bill. The bill we have here seems to have not even taken into account some of the changes that were put into place in the U.K. system.

Given the challenge of trying to come up with a system that comes as close as humanly possible to meeting the requirements of allowing a person to participate fully in the process, the conclusion that Professor Forcese and I came to, after our study looking not only at Canada but also at the United Kingdom and New Zealand--which also has a form of special advocates--is that the model we have already in Canada is the best option, and that model is the Security Intelligence Review Committee model.

The Security Intelligence Review Committee was routinely involved in immigration matters up until 2002, when the immigration law was changed. They routinely deal with all sorts of national security complaints. In the context of those hearings, they have security-cleared counsel that review the entire file that is the property of CSIS, so they have access to the complete file. They get full disclosure, which is one of the main flaws of this system.

The second key issue that occurs within the context of the Security Intelligence Review Committee process is that counsel, who represents the committee, who is independent counsel, and who, I would say, has a role analogous to that played by the special advocates in the U.K. system, is not barred under any circumstances from continuing to meet with the person who is the subject of the hearing after he or she reviews the secret evidence. This is extremely important for any fair process.

So what we're suggesting to you in our report is that there is another system. It's a made-in-Canada system that's worked for over 20 years, and it's a system that is far superior to the one that is in this bill.

Acknowledging that there is a bill, Professor Forcese is now going to discuss with you how this bill could be changed to bring it in line with what we believe are the minimum requirements. If you continue with this bill, I can guarantee you that counsel will argue that the Supreme Court of Canada said you have to come as close as possible to a fair hearing, and this bill is far short of what's provided for in the Security Intelligence Review Committee.

So the government is going to have to show why they didn't implement that process, and there are likely to be constitutional challenges, whereas if you implement the SIRC process, I can assure you that it would be very difficult for lawyers like myself to engage upon a constitutional challenge.

Professor Forcese.

[Prof. Craig Forcese, Associate Professor, Faculty of Law, University of Ottawa, As an Individual]

Thanks very much, Lorne, and thanks to the committee and to the chair for having us here today.

As Lorne noted, we're proposing a series of relatively minor amendments to Bill C-3 that incorporate these key objections that Lorne has raised. We have tabled a document with you that is essentially an annotated version of Bill C-3. The amendments we're proposing amount to maybe 500 words, and with those 500 words we think Parliament could graft onto Bill C-3, as presently constituted, something analogous to what happens in SIRC.

The two key areas enhanced in these proposed amendments are, first of all, an absolute statutory obligation on the government to disclose everything--all relevant information--so in our proposed language here we define what we mean by “relevant information”. We impose the obligation to disclose all relevant information on the government. We then certify or allow the special advocate to challenge the scope of disclosure by the government and then to seek the assistance of SIRC, which would have access to all the government information, to certify that in fact there has been full disclosure. This is a way of wrapping SIRC, which has a statutory authority to see all the information in the possession of CSIS except cabinet confidences, into the process of scrutinizing the scope of disclosure.

Now I want to underscore that we're not proposing this because we think that just in principle it's a good idea; we're proposing it because in the United Kingdom the special advocates told us they don't get to see everything. They take the view that there is an obligation on the government to disclose all information, including exculpatory information, but the special advocates in the U.K. have told us that there are instances in which they have discovered exculpatory evidence in case A that was not disclosed, and they only find this out through happenstance in case B. We want to pre-empt this possibility.

The other reason we're urging a statutory full disclosure obligation is the Arar commission experience. Counsel for the Arar commission told us that but for the fact that he could subpoena information above and beyond what the government thought was relevant, the truth in relation to Mr. Arar would never have come out. Both of these experiences drive our recommendation in this area.

As Lorne noted, there is a second broad area that we think requires tinkering. It is to apply an affirmative right for the special advocate to continue to communicate with the interested party after they have seen the closed information, the secret information. That is a practice, as Lorne noted, that is available in SIRC. Outside counsel for SIRC, who we hoped would be able to attend today but is not able to because he's in court right now, told us quite emphatically that he has seen cases collapse because he was able to ask for information that did not betray any secret that this counsel had in his possession. He was able to ask for information from the interested party that then prompted the government case to collapse in a SIRC proceeding.

That experience again--this practical, on-the-ground experience--suggests that it's vital for this special advocate to have continued access to the interested party, subject to an obligation not to disclose a secret, so the questioning would have to be oblique, but even oblique questioning, we're told, has resulted in the special advocate receiving information that causes government cases to collapse.

The last point I'll make, because I know our time is coming to an end here, is about an issue that Lorne did not raise. We have here a requirement in the bill that a summary be prepared for the interested party themselves. It is a summary prepared initially by the government and then endorsed by the judge, essentially. That summary, right now, contains information that a judge decides does not impair national security.

That is a very different standard from the standard applied in our Canada Evidence Act. In the Canada Evidence Act, information that raises a national security interest can be released if that interest is outweighed by a public interest in a fair trial. So there's a balancing that goes on in the Canada Evidence Act.

The absence of a balancing in this bill renders this bill, in our view, inconsistent with the House of Lords' recent determination at the end of October. The House of Lords in the United Kingdom ruled that in the United Kingdom the special advocate system there, which does not allow a balancing either, was too restraining. So it's likely that in the next few months we'll see a change in the U.K. system that will allow the adjudicator in these U.K. proceedings to weigh the national security interest against the fair trial interest. We're proposing a total of 25 or 30 words of amending language that would create a balancing test in the IRPA context.

I know we're out of time and I know there are probably some questions, so let me end there.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

We'll begin with Mr. Cullen, please, for seven minutes.

[Roy Cullen, Liberal, Etobicoke North, ON]

Did you want to go first?

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Yes, I have just one question.

[The Chair, Conservative, Garry Breitkreuz]

Oh, are you sharing time?

Go ahead, Mr. Dosanjh.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Waldman, you said that the U.K. system has already been changed and what the government has adopted in this legislation is the unchanged special advocate system. How has the U.K. system changed?

[Lorne Waldman]

Craig will fill in some of that. There are some key aspects.

The first complaint the special advocates had was that they didn't have enough resources. Imagine, if you're a lawyer, that you're given boxes and boxes of material. You can't discuss it with anyone; you can't bring your junior into the room, because you're the only person who has the security clearance. You have to go through all of these boxes and boxes of material to prepare your case, and you have no support. You can't even get your secretary to write a letter to the lawyer representing the government to ask for correspondence or whatever. You have to do this all yourself, and some lawyers aren't very good on.... So there is no support.

They've created something called the special advocates support office, which is an office made up of security-cleared lawyers whose function it is to assist the special advocates. That's the first thing.

The second change they made is that they now have two special advocates on all cases. There's a senior and a junior special advocate who are available on all of the cases.

They also made changes that required the government to include all exculpatory evidence, because there were concerns expressed by the special advocates that exculpatory evidence wasn't included.

The other matter—and then we'll see whether Craig can think of anything else—is that the rules were changed to expressly allow that the person who was the subject of the security certificate have a right to choose the counsel from the list, subject to objections by the government.

Have I missed anything?

[Prof. Craig Forcese]

That's pretty much it.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you, Mr. Chairman, and thank you to the witnesses.

I can understand, Mr. Waldman, the frustration, if you've worked on these files, and it's why I think most of us agree that we need changes to the process.

I might say, though, that I think you've dramatized it somewhat, because the subcommittee of this committee was taken through a dossier of someone who was being held under a security certificate, an alleged Iranian assassin. It was quite a thick booklet. This was in an open meeting, and the only things that were whited out were the sources of the information. And I might say that whoever the sources were, they were corroborated many times. In the end, the representative of the B.C. Civil Liberties Association agreed they wouldn't want someone like that living next door to them.

Nonetheless, I understand your point, that the information is not as fulsome as one would want it to be. That's why the government I think has responded with this special advocate. Our subcommittee, which looked at this, called for a special advocate counsel as well.

I just have a question with respect to SIRC. It's an interesting-sounding proposition that you're advancing here. I understood there were some limitations on what information is available to the members of SIRC. In fact, I remember hearing from SIRC that they were not privy to certain operational matters; in fact, they complained somewhat about that.

Are you saying—and the important question is whether—SIRC would have access to all the sources of information that CSIS and the RCMP and other agencies relied on to cause them to request a security certificate?

[Lorne Waldman]

I'll pass on that and let Professor Forcese....

I just want to comment on your comment. I know the case you're talking about is Ahani, because that was a well-publicized case. The difference between Ahani and virtually every other security certificate is that Mr. Ahani didn't dispute most of the facts in his case. He accepted that he had been involved in the activities that were alleged.

All of the other security certificates that I'm aware of involve people who deny that they're members of the organizations, and the evidence that is relied upon by the government.... Well, the only other case that was like that was that of the Russian spies. Ultimately—I was involved in that case—we didn't get into the evidence, but in the end they admitted they were Russian spies. Most of the time in these cases, the key evidence and the evidence is withheld.

Craig, why don't you deal with the SIRC issue?

[Prof. Craig Forcese]

The issue of what's in the possession of the Government of Canada is a crucial one. SIRC has a statutory right to everything except cabinet confidences. What is in the possession of CSIS, though, will vary. I can only tell you this based on hearsay, never having seen it.

My understanding is that often we're dealing with an analyst's report, which might be piled on another analyst's report from an allied agency, which in turn may be piled on a series of other analysts' reports, which then in turn might have an extract from some communications intercept.

It's hearsay piled upon hearsay piled upon hearsay. That's the kind of information that may, as far as we know, be being used in the security certificate cases, which then SIRC would have access to.

Would they have access to the raw transcript that's supplied by and might still be in the possession of an allied service, but which is in the possession of CSIS? I would presume not.

One of the concerns that special advocates in the U.K. expressed to us is that the work product they're looking at tends to be cherry-picked—that is, because it's piled hearsay, there's something that looks exculpatory that's been used in one of these analysts' reports, and then it's subjective analysis piled upon subjective analysis.

So the issue of the quality of evidence is going to be a live one, irrespective of whether you get full access to what's in the possession of CSIS or not.

[Roy Cullen, Liberal, Etobicoke North, ON]

I presume my time is close to being up, but you're characterizing it as hearsay. That would be one way to characterize it.

It's a responsibility of a judge to ensure that the information is corroborated, that it seems to be reliable. The part that's missing, it seems to me, is there's no one to challenge that on behalf of the people of Canada or on behalf of the person they are trying to withhold under a security certificate.

The other comment, Mr. Waldman, is that I expect the profile you're talking about would be similar to that of a lot of people who are arrested and come to trial. Many of them say they're not guilty. I was just reading in the paper--not to trivialize this--that O.J. Simpson has said on many occasions he has done nothing. I'm not surprised people would dispute the fact that they're part of some group or that they have done certain things, but whether that--

[Lorne Waldman]

The difference between any other person and people under security certificates is that when they come to trial, they get to see the evidence, they get to cross-examine the witnesses, they get to challenge the credibility of the witnesses, and in some cases they are acquitted. It's not a foregone conclusion.

I think we have to watch carefully what's going to happen in Toronto. I think you'll be quite surprised to see that at the end of the day, of the 18 accused, a number of them are going to walk away without any convictions or with very minor convictions, and indeed many of the charges will have been dropped against some of the accused.

That's why we have a legal system, to make sure the allegations are proved in a way that establishes the guilt of the person. In this process, what happens is the person who's accused doesn't have any of the normal methods of challenging the credibility of the evidence.

The key point, to go back to your first question, is that SIRC has access to everything CSIS has access to. That's why we think it's important that SIRC has the ability to look at the file to make sure that what goes before the judge with the special advocate is the same as what CSIS has.

[Roy Cullen, Liberal, Etobicoke North, ON]

I'm not so sure about that. I certainly want our researcher to check that out.

The other point is that the idea of the special advocate is to do precisely what you're proposing. That's why our subcommittee recommended that, and that's why the government I think is responding to the Supreme Court in that way. We could debate this at some length, but--