Thank you, Mr. Chair.
My name is Alex Neve, and I'm the secretary general of Amnesty International Canada. It's a pleasure to be here today. We do certainly appreciate the fact that the committee has opened up this extra opportunity for hearings, making it possible for us to appear.
Amnesty International first spoke out about concerns regarding Canada's immigration security certificate procedure back in 1997, in the case of Manickavasagam Suresh. At the time, we highlighted two separate but certainly interrelated and very serious human rights concerns, and 10 years later both of these issues of fair process and protection from torture remain very substantial and glaring problems.
Amnesty International approaches its review of Bill C-3 from three perspectives. First, does it lead to a process that meets international standards, such that individuals who are subjected to certificates will in fact be dealt with fairly? Second, is it a process that more widely stands to strengthen the protection of human rights in Canadian security laws and procedures? And third, recognizing the importance of the example Canada sets for the rest of the world, is this an approach that demonstrates leadership in the crucial global effort to ensure that human rights are not sacrificed to security?
That latter consideration, we urge, should be of real concern in your deliberations. The past six years, in the aftermath of September 11, have witnessed a global challenge to human rights standards. Crucial safeguards against torture, arbitrary detention, fair trials, and other vital human rights principles have been undermined. We very much need to look to Canada to stand firm for these critical human rights principles and make it clear that true, lasting security will be achieved only through scrupulous regard for these hard-won, universally binding standards.
Amnesty International developed principles that we believe should guide reform of the immigration security certificate process, which derive from Canada's international human rights obligations. It had been our intention to promote these principles in consultations we had expected would be conducted in advance of preparing this bill. Those consultations, unfortunately, never took place.
After outlining those principles, I will then highlight a number of the most problematic human rights shortcomings in Bill C-3's proposed special advocate model, and I will end with Amnesty International's key recommendation, that the special advocate model should be abandoned, and instead, measures should be put in place to make it possible for the individual's own lawyer to provide effective representation.
The overarching principles--there are nine of them--are as follows. I hope you will be able to have these later in writing. On short notice our brief wasn't able to be prepared in both languages, but it is available and is with the clerk, and he tells me it should be distributed to you in short order. In writing, they are elaborated more fully, but I want to signal the key concepts.
First, in no circumstances should any procedure lead to the removal or transfer of any individual from Canada to a country where there's a serious risk he or she would be tortured or subjected to cruel, inhuman, or degrading treatment.
Second, in no circumstances should any procedure lead to the removal of an individual if he or she would consequently escape facing justice for crimes.
Third, criminal proceedings should be launched in Canada when removal or transfer is not possible.
Fourth, immigration removals should not be disguised extraditions.
Fifth, immigration-based security procedures should provide the same rigorous standards of procedural fairness as are offered under Canadian criminal law.
Sixth, the right to full answer and defence must be scrupulously protected in any immigration-based security procedures.
Seventh, in no circumstances should evidence be withheld for the sole reason that to disclose it would be injurious to international relations. The Arar inquiry provides troubling examples of the extent to which concern about injuring international relations is used in a wholly inappropriate manner to justify withholding important evidence.
Eighth, in immigration-based security procedures, detention must be the last resort. Immigration detention should not be prolonged and can never be indefinite.
Finally, ninth, immigration detention is not and should not be treated the same as criminal detention.
The approach that is proposed under Bill C-3, unfortunately, does not meet these principles. In large part, of course, that is because the bill fails to incorporate provisions that deal with many of the very troubling shortcomings that are inherent in the security certificate system, such as deportations to torture, concerns about impunity, and issues related to detention.
The special advocates proposal itself, evidently intended to improve fairness, improves the system only marginally and in the end does little to ensure that fair trial rights are adequately protected.
The proposed amendments creating special advocates mirror closely the model that exists in the United Kingdom. As noted in the Supreme Court decision of Charkaoui, the British model has received significant criticism from U.K. parliamentary committees, U.K. courts, detainees and their advocates, and from special advocates themselves, some of whom have stepped down from their positions rather than continue to give what some have called a veneer of legality to a fundamentally flawed system.
I would like to quickly review some of the more glaring problems with the proposed system. The concerns are elaborated in greater detail in the written notes you will later receive.
First is the concern that special advocates do not have 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 from the proceedings. The lack of a clearly expressed obligation on the government to disclose all relevant information has been a grave concern in the U.K., where special advocates have indicated that they have become aware of cases where important exculpatory information was not disclosed to them. If there is potentially exculpatory evidence, the minister must be obliged to disclose it and must not be allowed to withdraw it from the process.
Second, while Bill C-3 permits the appointment of a special advocate on a judicial review or on an appeal from a designated judge's decision, the proposed legislation provides no mechanism for the special advocate, him or herself, to commence a judicial review or an appeal where an issue arises in the context of in camera proceedings.
Third, Bill C-3 does not set out the criteria for the appointment of special advocates. Bill C-3 does not set out minimum qualifications for special advocates or suggest where they will be drawn from, leaving these to the discretion of the minister. The bill makes no provision for training, administrative support, or access to experts for the special advocates.
The U.K. House of Commons Constitutional Affairs Committee has severely criticized the lack of resources for special advocates in the U.K. once they have been appointed. For example, the lack of Arabic-speaking staff has resulted in situations where material that was withheld from the individual concerned was, after the fact, found to be public and available on the Internet and could have been disclosed to the individual to help mount a defence.
Fourth, the relationship between the named individual and the special advocate is fundamentally and inherently flawed. First, the individual plays only a very minimal role in appointing the special advocate, and second, the absence of a solicitor-client relationship undermines the trust necessary between the special advocate and the named individual.
With respect to appointment, it is the judge rather than the named individual who selects the special advocate, chosen from a list of persons established by the Minister of Justice. The judge may also terminate the special advocate. The named individual has only a restricted role in the selection process.
The appointment of the special advocate by a judge with little input from the individual may give the impression that the special advocate is not the advocate of the named individual, and the named individual may perceive the special advocate to actually be acting as an agent of the state.
The role of the special advocate is further undercut by the absence of solicitor-client privilege between the named individual and the special advocate. The proposed legislation is silent on the special advocate's duty of confidentiality and legal professional privilege. This ambiguity will put a chill on communications between the named individual and the special advocate.
The fifth and final concern Amnesty International has with respect to Bill C-3 relates to the restrictions placed on the special advocate's ability to communicate with the named individual or anyone else following the disclosure of secret information to the special advocate. Of course, it is possible for the special advocate to seek the judge's authorization to be allowed to communicate with outsiders, including the named individual. This provision is similar to that found in the U.K. special advocate model, where authorization from the judge allowing further communications has rarely been given, and is rarely sought because the questions the special advocate seeks to ask must be vetted first by the government.
This prohibition on communication with the named individual after disclosure of the secret evidence has been the subject of strong criticism in the U.K., not only from human rights bodies and the special advocates themselves, but by parliamentarians as well. The same criticisms apply to Bill C-3.
It is uncertain whether the special advocate can call witnesses to testify on behalf of the named individual. The limitation on the special advocate's ability to present other evidence on behalf of the named person, such as documentary evidence, is less ambiguous. This may be done only with the judge's authorization.
What is the solution? Obviously, there are amendments that could go some distance in meeting the concerns I have identified. It is disappointing that the bill does not include those sorts of enhancements, all of which are clearly apparent from the U.K. experience and on the public record. 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 Amnesty International's view, it cannot.
The improvements that are required, securing the real and perceived independence of special advocates, building a relationship of trust, ensuring confidentiality and privilege, and allowing an ongoing relationship throughout the course of the proceedings, would all, if enacted, essentially replicate the role the individual's own lawyer would and should play. Therefore, recognizing the fundamental importance of the solicitor-client relationship in any fair trial, as well as important rights associated with the choice of one's own counsel, all of which is of even greater importance in proceedings involving secrecy, Amnesty International urges that Bill C-3 be amended to focus instead on making it possible for the individual's own lawyer to effectively represent the person concerned.
This is not an outlandish suggestion. The Canadian justice system has already 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 aspects of that evidence to their client.
The most obvious precedence for such a model involving national security material can be found in criminal cases such as the recent Air India trial. In the Air India trial, the crown gave defence counsel limited interim disclosure to the relevant CSIS files, with an undertaking of confidentiality not to disclose the evidence to others, including their clients. Recognizing that it would have been too time consuming to then seek a judicial ruling for each document, the parties established their own system of negotiating which documents could in turn be disclosed to the accused.
The use of undertakings in Air India stemmed from earlier precedents dealing with informant privilege, third-party wiretaps, police intelligence records, and privileged documents. Ironically, given the very serious concerns about the nature of the justice system being pursued there, models used by the United States to deal with detainees in Guantanamo Bay present a partial example to consider.
Detainees brought before the flawed military commission process are appointed a military defence counsel to represent them, in addition to a civilian lawyer, both of whom have lawyer-client privilege. The military lawyer is able to see classified evidence but can be forbidden from sharing that information with the detainee and their civilian counsel.
The United States has used criminal law to try individuals for suspected terrorist activity. Ahmed Ressam was convicted of conspiring to blow up Los Angeles International Airport, and his trial was a criminal trial held publicly. 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, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution.
In sum, the special advocate model should 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 some of the evidence he or she is given access to. As well, it is unfortunate that Bill C-3 does not attempt to deal with the related and very serious human rights concerns that arise in immigration security cases, including prohibiting returns to torture, ensuring individuals do not escape justice, removing injury to international relations as a ground for withholding evidence, and improving the provisions governing detention in immigration security cases.