Citizenship and Immigration Committee on April 26th, 2007

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

Is that the only comment you wish to make about a special advocate's work?

[Ian MacDonald]

No. The special committee heard a lot of evidence, including evidence I gave to it, and they produced a report, which really spoke about the fact that once you've seen the confidential material, the special advocate can't take instructions from the appellant or the appellant's counsel. That was a criticism.

Secondly, the special advocates lack the resources of an ordinary legal team, so it would be difficult to conduct a full defence. And that would be, for example, particularly on the question of disclosure—that you can't see whether something is in the public domain.

There is also a serious problem about the use of intercept evidence in criminal trials in Britain, which seems to have the intelligence services, to some extent, at loggerheads with the police, who are in favour of allowing it in.

And a third point the constitutional affairs committee made was that the special advocates have no power to call witnesses. In my experience, that was not a thing I found I would ever have either wanted to do or needed to do, but that's what they said.

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

There was another case in Canada, that of Maher Arar. You spoke of too much secret evidence and Justice O'Connor came to the same conclusion. When he tabled his report, he was forced to keep large portions of it under wraps.

[Ian MacDonald]

There is obviously going to be some evidence that may be sensitive, for example the identity of informers and so forth, but with a lot of the intercept evidence, I can't see why it has to be withheld. You only have to read the latest novel, or whatever it is, and you can find out what the latest technical advances are in covert surveillance.

[The Chair, Conservative, Norman Doyle]

That completes five and a half minutes here, Madam Faille, so I think I'll go to Mr. Siksay of the New Democratic Party.

Mr. Siksay.

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

Thank you, Chair.

Thank you for being with us today, Mr. MacDonald. I hope you appreciate that your work and your decisions around your role as a special advocate have had a resonance in many places, including Canada, not just back home for you in Britain. So I thank you for the work you've been doing on that.

I wanted to ask a question. You mentioned the difficulty in using intelligence information that was received, particularly the problem of classified information—how that was classified and the limitations that puts on the process. Do you have any thoughts on how information is classified? Is there any kind of review of the classification process or the decisions made around classification, and how does that affect the kind of process you are involved in?

[Ian MacDonald]

There are certain parts of that question that raise things that I'm not allowed to discuss publicly, but I don't think there is any—I'm sure there is an ongoing review. Basically, what I've said is that before SIAC, what one had were assessments made by intelligence officers who were giving evidence. Now, they all gave evidence in open court—that was when the appellant and the appellant's representatives were present—and it usually consisted of about five lines. When we went into closed session, they might be giving evidence that lasted all day. But basically, my cross-examinations and other special advocates' cross-examinations were trying to test the accuracy of assessments. We were never looking at original evidence. We never heard original witnesses. It was all based on assessments. So in a sense, it's opinion evidence all the time. And that's as far as one could go with that procedure.

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

As a practical issue, Mr. MacDonald, is there any training that lawyers would get in the difference between assessing evidence and assessing information—testing evidence versus testing assessments or intelligence information?

[Ian MacDonald]

No. There's no training for people who are appointed as special advocates. You learn on the job. Most of us were all very experienced lawyers, either in the immigration field or in trial work, which I've always done. But there was no kind of training whatsoever.

The only observation I would make is that the intelligence services having to justify assessments that they made before trained lawyers was probably a very big cultural shock. There must be discussions going on, which I know nothing about, about how they can do that.

We've heard a lot of stuff about intelligence assessments being politically manipulated. Well, the opposite kind of effect took place within SIAC. The basis upon which these assessments were arrived at and whether the fact that A who had been seen at the wedding of B who had been seen at some other social function with C who was a second cousin of bin Laden proved there was a terrorist connection were the kinds of things one had to look at.

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

After the court decision that called the legislation into question there was new legislation brought in, I believe. There was an attempt to extend indefinite detention to British nationals, as well as foreign nationals. Did that succeed? What is the status of that now in Britain?

[Ian MacDonald]

No. There was no attempt to have indefinite detention. After the case the government refused to release the detainees, even though they must have known that holding them was contrary to the European convention on human rights, which is incorporated as part of our law.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. MacDonald.

I'm sorry to interrupt you. Did you want to finish your answer? I have to go to another committee member right now, so—

[Ian MacDonald]

No, no. That's fine.

[The Chair, Conservative, Norman Doyle]

Okay. Thank you.

Mr. Ed Komarnicki is with the Conservative Party, and he is parliamentary secretary to the Minister of Citizenship and Immigration.

Mr. Komarnicki.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Thank you, Mr. MacDonald.

Certainly you've been informative of what the process has been. I'll have a series of questions that maybe you could attempt to answer. I'll put them together as I speak.

First, you indicated with respect to SIAC that there was a change after 9/11 that made it difficult for you, as special counsel. I'm wondering if the change of legislation caused that and whether you were able to perform your duties better before that.

One of the other issues in dealing with it in a criminal court is that turning intelligence information into court evidence would be problematic. I think one of the witnesses testified that no democratic country has found a way to effectively prosecute people where part of the evidence is secret and cannot be disclosed to the individual. It's a dilemma that all western countries face. You may have hit on part of what the problem is in the fact that you don't actually get to see original evidence; it's more opinion-based evidence.

Part of our recommendation was that the special advocate would have the ability to test the confidential or secret evidence and give an opportunity for the detainee to meet the case against them—all subject of course to balancing that with national security.

One of your comments was that you had no legal team or time to scan through websites or to dig up original evidence. If you had the resource base, could you not test some of the information to verify its authenticity or accurateness, to actually turn it into original evidence?

[Ian MacDonald]

Right, we're dealing with your last question first.

In none of the cases that I was involved in did SIAC have before it anything more than about probably 10% of the evidence that was available to the security services. That came out because we sought discovery from time to time from them within the closed sessions.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

But could—

[Ian MacDonald]

Let me give you an example, and I've got to be a little bit careful about what I say.

Intercept evidence is obviously going to be based upon accurate translations of what was actually said. Before SIAC a summary would be used, without the actual words. Sometimes the words were there, but not always.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

But couldn't one incorporate provisions that would allow you to get closer to the bottom of the allegations, or the essence?

[Ian MacDonald]

Well, obviously if you're prepared to pour resources into it, you can do that. It's also a problem with unused material in criminal trial cases. It's often a question of time and resources.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

It's the objective to balance infringing the rights of the detainee as little as possible against ensuring the safety and security of the nation, because it's better to ensure, I suppose, the safety and security of the nation rather than be sorry. So in that balance, can you see yourself operating as a special advocate if you had the ability to probe and test the information or evidence?

[Ian MacDonald]

Well, yes, that actually brings me back to the first question you asked me. I think the fundamental change after 9/11 was bringing in indefinite detention. The whole focus of SIAC, in fact all the SIAC cases practically, not all of them but the vast majority, were detention cases.

In that sense, we're quite different from the particular thing that you're dealing with, security certificates, because the premise upon which detention was based was that it would not be possible to remove this person to the country of origin because he would face the risk of torture or something else.

[The Chair, Conservative, Norman Doyle]

Okay, thank you, Mr. Komarnicki.

I will now go to another Liberal member of the committee, Mr. Andrew Telegdi. Mr. Telegdi.

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

Thank you very much.

Actually, where the parliamentary secretary ended off in balancing the rights of the individual with the security of the nation, I think in some ways that's very dangerous and a false premise. The reason I say that is if you use the test of reasonable suspicion, there was a reasonable suspicion that there were weapons of mass destruction in Iraq, and you can see where that led to.

The other issue is that it ends up being counterproductive; it breeds a mentality of them and us. In terms of the creeping nature of the erosion of civil liberties, it's clearly demonstrated in the Canadian context, where originally we had security certificates for people with no status in the country, then in 2002 we put in security certificates for people with status in the country, and in 2003 an attempt was made to have the security certificates extend to citizens.

My question to you as a jurist—The whole integrity of the judicial system, if we're going to maintain it, is the ability to test that evidence, because if you rely on untested evidence, we have all sorts of outcomes that are very dangerous to society itself and the system itself.

And the indefinite detention—we just saw the other day what happens when you obtain information by threats or torture, where somebody who is a detainee under a security certificate was released on very stringent conditions. The witnesses against him all recanted, essentially. Yet this person is sitting here with the security certificate over them. I think it really does create a dilemma of producing that them-and-us mentality, when if you're going to be fighting terror, it's everybody's and all groups' responsibility in a society to do that. That's my real fear, and I'm not sure what your experience is over in England with that.

[Ian MacDonald]

I think that balance between public safety and fundamental liberties and human rights is really at the heart of all this. Perhaps I can quote Lord Hoffman, who is one of the judges in the Belmarsh detainees case. In his judgment, he said:

I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.

That was part of his judgment.

It seems to me that the starting point one must have in a democratic society is one must have good intelligence. In fact, if you lock up everyone who's on your intelligence radar or place them under control orders, house arrests, that wouldn't have prevented either the atrocity that took place in Madrid, or indeed the London bombings that took place on 7/7 in the London tube. They happened because intelligence either was not there or had not been properly applied.

So you find that locking people up may enable the politicians—and I know I'm talking to politicians—to look as if they are protecting us, but the reality is that for the next set of bombers, if they are not on their radar, then at best it's going to be a cosmetic measure to appease public fear and probably not much else.

Secondly, when people are on your radar, assessments and information of the intelligence services, it seems to me, need to be turned into evidence so that the suspected perpetrators can be arrested, tried, and convicted before the courts in open and fair trials. And that in fact is being done in the U.K. on a very big scale now. So far, it's causing a whole lot of other problems in terms of a pileup of cases in certain courts in London and overworked police officers, but that is, it seems to me, the way to go. The starting point for it all is having good intelligence.