Thank you very much, Madam Chair.
I will speak in both languages.
I wish to speak to you today about a problem related to the national security exception, particularly the fact that the government seems to interpret this exception as excluding the jurisdiction of courts.
I'm not an expert in national security like Mr. Cox, nor in computer science. I am a lawyer, and that is why I'm addressing you.
Perhaps I could start with a personal example. I was a young lawyer in the 1990s, and I had to work on several bidding cases. Our office represented bidders who had been excluded from a process or were denied a contract.
At that time, the decisions of the courts made it very difficult to challenge decisions, such as those concerning contracts awarded by municipalities. I remember a case where the City of Montreal had awarded a contract to our competitor, despite the fact that there were irregularities in his bid, which had not been a problem. In another case, my client was accused of similar irregularities, and his bid was found to be invalid. I did not understand why the City did one thing in one case and something else in another.
A few years later, the Charbonneau Commission—as you may recall—allowed us to learn a lot about the integrity of the bidding process. The lesson I took away from this was that court oversight is essential to ensure that bidding processes work, that processes are followed, and that people make decisions based on criteria and not on arbitrary considerations or favouritism. As the saying goes, “when the cat's away, the mice do play”. Obviously, the cat is the courts.
I'd like to make an important point. I read the transcript of your last meeting—in February, I think—and the point was made that, well, the national security exception was invoked in a number of cases, but still, it was a competitive process. However, what I've learned shows you that, if you don't have an external control, you can never be sure that it's actually competitive. In the cases I talked about, yes, it was supposed to be competitive. There was a call for tenders and there were criteria, but the City of Montreal, in those cases, was doing what it wanted, essentially.
I want to go beyond that. Beyond protecting competitiveness, I think it's an issue about the rule of law. There's nothing in the act respecting the Canadian International Trade Tribunal, nor in the Agreement on Internal Trade, that ousts the jurisdiction of the tribunal when the national security exemption is invoked.
What the government is essentially asserting is a right to exempt itself from the law as it sees fit, without any statutory basis. That's called a dispensation power, and that was abolished by the Bill of Rights—not Diefenbaker's Bill of Rights, but the Bill of Rights that ended the Glorious Revolution in England in 1689. That's been with us for a long time, the principle that a government cannot exempt itself from the law. That is so, even when national security is at stake.
I don't want to minimize in any way the importance of national security, but the fact that national security is at stake does not mean that we oust the jurisdiction of courts and tribunals. What we do is design processes that reconcile the needs of national security and the need for judicial review, the requirements of the rule of law.
Let me give you a few examples. In the last Parliament there was Bill C-51. There was an important debate about this piece of legislation. Let me just give you an example from it. There were provisions with respect to the no-fly list. What you see is that the bill gave a statutory basis for the no-fly list, but it put into place a process for people to appeal or to contest before a court of justice their possible inclusion on the no-fly list. Even if there is a concern for national security, Parliament found a way to address it in a way that would preserve the individual's right to present his or her case before a court, and the needs of national security, especially with respect to confidentiality.
It's the same thing with respect to the famous security certificates. When you want to deport someone who's a threat to national security, there is a process for that person to challenge the designation in court, and there is a process for keeping information confidential when it relates to issues of national security, so it's possible to combine the two.
It's never done in a blanket way. It's never done in a way that prevents a court from looking at a particular case and asking itself if it is satisfied that there is really a national security concern. If there is one, it will address it; but if there are none, then it'll go public and deal with the case.
I think that gives us an idea of how the courts deal with these issues. The courts are sensitive to national security issues and have all the tools necessary to ensure the confidentiality of information that may pose a risk in this regard. In my view, nothing in the Agreement on Internal Trade that was mentioned earlier allows the government to say that the courts lose jurisdiction when it invokes a national security exception.
Thank you.