Citizenship and Immigration Committee on April 26th, 2007

[The Chair, Conservative, Norman Doyle]

You can hear me just fine, Mr. MacDonald?

[Ian MacDonald, Senior Barrister, Immigration and Criminal Law, Garden Court Chambers (United Kingdom), As an Individual]

Yes, I can, indeed.

[The Chair, Conservative, Norman Doyle]

Okay. We will bring our meeting to order now. I want to welcome everyone here today as we continue our hearing on detention centres and security certificates.

For Mr. MacDonald's information, we've already sent our report on detention centres to the House of Commons; however, we can still hear evidence and we're very pleased to be hearing from you this morning, Mr. MacDonald.

Just by way of a brief introduction, Mr. MacDonald is a U.K. lawyer specializing in immigration and criminal law. He is a senior barrister with Garden Court Chambers, which is dedicated to civil liberties and social justice.

We want to welcome you here this morning, Mr. MacDonald.

[Ian MacDonald]

Thank you very much for that.

[The Chair, Conservative, Norman Doyle]

We do have quite a fine complement of members here this morning, representing the Liberal Party, Bloc party, NDP, and the Conservative Party of Canada.

What we generally do is allow for an opening statement and then we will throw it open to committee members for questions or discussion. So I'll go to you immediately, Mr. MacDonald, and ask you to make your opening statement, if you have one.

[Ian MacDonald]

I e-mailed a short statement earlier this morning, but it's only in English and hasn't been translated into French. It sets out the role of the special advocate and my experiences as one.

The role of special advocate came into existence in 1998, really, following a case in the European Court of Human Rights called Jahal, in which enormous criticism was directed against a previously existing advisory panel, which suggested arrangements had to be made that would both accommodate legitimate security concerns and yet accord the individual a substantial measure of protection. That resulted in the creation of what we've called the Special Immigration Appeals Commission, which was set up by an act of Parliament in 1997 and came into operation in 1998.

Although it's called a commission, in fact it's a court presided over by a high court judge, who sits with an immigration judge on one side and someone who usually has a security background on the other side. The proceedings are fairly informal.

The act that sets up that court also makes provision for the appointment of special advocates. I was one of the first special advocates to be appointed by the Attorney General in 1998. At that time I, like the other special advocates, took the appointment because I felt that it was a new system and a very big improvement in terms of fair procedure over the advisory panel that had gone before. At that time, I certainly saw it as a progressive measure.

I felt that all changed after 9/11. The main reason was that after 9/11 the government gave the Special Immigration Appeals Commission, or SIAC, a completely new jurisdiction under the Anti-terrorism, Crime and Security Act of 2001, which made provision for the indefinite detention without trial of suspected international terrorists accused of having links to al Qaeda. This applied only to foreigners who could not otherwise be deported or removed safely from the U.K.; it did not apply to British citizen suspects.

During the course of that particular act, I represented the interests of five of the detainee suspects. Overall, during my time at SIAC I represented roughly 10 different appellants; not all of them, of course, were suspected international terrorists or were being locked up indefinitely. There were, for example, PhD students from Middle Eastern countries whom the government wanted to kick out because it thought they were carrying out studies in order to give their country weapons of mass destruction that would allow them to send missiles to Israel. There was another man who was on it who was accused of helping Pakistan to obtain a nuclear procurement, and so forth.

I'll come to my experience within SIAC. Although the SIAC rules and judgments speak about witnesses and evidence, in fact it's not evidence in the normal sense in which civil and criminal lawyers understand that term. The evidence is almost entirely, in my experience, given by intelligence officers, and their evidence consists not of things that are within their direct knowledge at all, but of assessments. These assessments may be based on a whole variety of sources, from informers and telephone or e-mail intercepts to other assessments by other intelligence services.

One of the things that's very difficult to do, even if you're on the inside, in the kinds of proceedings that are only based on reasonable suspicion, is to test the accuracy of the assessments or the truthfulness of human source materials that are used in reaching these assessments. That's one of the major problems. It's a problem that has certainly been heightened since 9/11 through the widespread use of physical and psychological torture in the quest for better intelligence. One of the troubles with obtaining evidence by torture and slightly less oppressive means, as the Latin historian Tacitus wisely observed 2,000 years ago, is that it tends to bring about false witness. One of the problems is that there is a danger now that you have a whole raft of intelligence that may not be reliable and is certainly questionable.

A second objection is that if you simply allow, as we did, indefinite detention on the basis of reasonable suspicion raised by intelligence assessments, there is no actual role in those cases for the police to play. In the U.K., we have very experienced police who have been dealing with terrorist offences over a long period of time, and they simply don't come into the picture. Therefore, there isn't any real method of turning what is really information into evidence that could be put before a criminal court in the normal way.

A third objection is the more obvious one that is usually put forward, the objection of fairness. As a special advocate, you are allowed to see the appellant and speak to the lawyers representing him or her until the moment that you receive the closed material, the secret material. Then a Chinese wall goes up and you can't speak any longer about the case without the leave of the commission, which will usually only be given to speak of procedural matters. You certainly are not allowed to reveal any of the secret material in order to take instructions on it. Did the appellant make a phone call to A on such and such a day? What was it about? Did he really meet Bin Laden at a training camp in Afghanistan on such and such a date, or was he in fact working at the checkout at a large electrical store in Manchester on that particular date? Has he any proof of that? These are all no-go areas in these cases where you're actually, as a kind of dislocation of representation, between the special advocate and the legal representatives of the appellant.

There are certain situations where it may well be that a special advocate is of value and of some use. One of the first tasks that a special advocate in SIAC has to perform on receipt of the closed evidence is to go through it and then see if it contains material that ought to be disclosed to the appellant, because, for example, it's already in the public domain. That's not very easy to do, because a special advocate has no legal team to back him or her up, nor have they the time to scan through hundreds of websites, some of which may be in foreign languages and so forth. But it is potentially a valuable function, and indeed it's a function that has been replicated in some criminal trials where a special advocate will look at evidence that the prosecution doesn't want to disclose for all kinds of reasons—protection of informers, whatever, but usually for public interest immunity reasons.

The difference, of course, between that and SIAC is that if evidence is not disclosed, then in a criminal trial the prosecution can't use it; in SIAC, they can.

So those are general observations about my experiences.

The House of Lords, in a landmark decision in December 2004, ruled that a law that imposes indefinite imprisonment without trial, that is partial in its operation and only targets one of the groups that may be involved in terrorist planning, is unlawful, and they held that it was a disproportionate and discriminatory response to threats to the nation.

Since that time, the government has introduced control orders under the Prevention of Terrorism Act of 2005, which is basically a form of house arrest—

[The Chair, Conservative, Norman Doyle]

Mr. MacDonald, can I interrupt you there? We only have one hour, and we have a number of committee members who will surely want to get some comments in, and some questions. So could we interrupt you there and go to our committee members?

[Ian MacDonald]

Certainly.

[The Chair, Conservative, Norman Doyle]

The first member we have is the critic for the official opposition, Mr. Alghabra, who would like to be able to ask a few questions.

I'll pass it over to Mr. Alghabra now.

[Omar Alghabra, Liberal, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Mr. MacDonald, thank you so much for joining us today. We're going to learn a lot from your insight and experience on this matter.

As you are probably aware, our Supreme Court a month ago decided that the way we have our security certificate procedures right now is unconstitutional. It didn't have an issue with the fundamental intent of the security certificate, but the problem that it saw was with the review procedure and mechanism.

[Ian MacDonald]

Yes, I read the case.

[Omar Alghabra, Liberal, Mississauga—Erindale, ON]

What we have done here in committee is we've actually just tabled a report to the House of Commons with our recommendations. We tried to balance what the Supreme Court thought was necessary and important. Let me share with you some of the recommendations, and I want to hear your input, if you don't mind.

We certainly also are well aware of some of the shortcomings of the special advocate as it exists in Britain. Some of the recommendations that we put forth are to ensure that special advocates have access to the evidence; that special advocates have access to the detainee, where they can share the evidence with them; that special advocates are able to test and challenge the evidence. We also said that our traditional Criminal Code should be the preferred method of prosecution. We also recommended that we should set a period of time after a person has been in detention and we should say that if that period has been reached, if the government is unable to prosecute the individual, then there should be some kind of a release on some conditions. We are not in favour of indefinite detention.

[Ian MacDonald]

Yes.

[Omar Alghabra, Liberal, Mississauga—Erindale, ON]

I just want to ask you, I don't know if you've read the report, but given the summary that I just gave you, how do you feel about these recommendations? Do they address some of your concerns that you've raised?

[Ian MacDonald]

Yes, they do. They address some of them. They're not just my concerns; I think they're fundamental concerns. I think they do address clearly that the special advocate has access to the assessments and the documents on which those assessments are based at present.

The main thing is that once the special advocate has that access, at present the special advocate is not allowed to have any kind of communication about the case with either the appellant or the appellant's legal representatives, 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. So if you're sharing the evidence with the detainee, then that would certainly be one way. But then there may be certain evidence that is withheld.

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. That's something that is quite difficult to address in Britain without changing the legislation.

[Omar Alghabra, Liberal, Mississauga—Erindale, ON]

I don't know if you were aware that we'd written that report. Were you aware that we had a report?

[Ian MacDonald]

I was aware that you had, but I've never seen a copy of it.

I certainly totally agree that the criminal courts are the preferred method of dealing with people. The problem, which is a problem that I think any police force has, is turning intelligence information into evidence that's admissible in a court of law.

If you actually look at what's been happening in Britain, the number of people against whom control orders and similar things are being taken is really diminishing—we're talking about fewer than 40 people—whereas the number of criminal prosecutions has increased. There are now, awaiting trial in the United Kingdom, well over 100 defendants in some 35 or 36 different trials. I can't remember the precise figures.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. MacDonald.

We will now go to a new questioner, Madam Faille, from the Bloc party. Madam Faille.

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

I just have a question. Will there be any interpretation this morning?

[The Chair, Conservative, Norman Doyle]

Would you say that again?

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

Is Mr. MacDonald getting the interpretation?

[Ian MacDonald]

I can't, no.

I can probably understand it in French.

[The Chair, Conservative, Norman Doyle]

According to the technician, you will get the translation.

Okay. Go ahead, Madam Faille.

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

I'm sorry, but in Quebec, French is spoken more often than English.

I just have a question about the current process in England. Is a group of individuals currently at work reviewing the legislation?

[Ian MacDonald]

Yes, there is. It's been reviewed by a parliamentary committee, which made certain recommendations, but they didn't go very far. And 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 the special advocates get the closed material, there is no kind of communication about the case. So it's impossible for the appellant to know what the case against him is in full. And it's very often impossible for the special advocate to challenge, either on a factual basis or indeed on a legal basis.

There is one case in which I was involved, in which we are taking a legal challenge to the court of appeal and which will be held entirely in secret. It could, in fact, provide very important precedent law, but no one will be allowed to see it or read it.