Citizenship and Immigration Committee on April 26th, 2007

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. MacDonald.

We now go to Mr. Raymond Gravel of the Bloc party. Mr. Gravel.

[Raymond Gravel, Bloc, Repentigny, QC]

Thank you, Mr. MacDonald. I read your biographical notes which were translated into French. You have a fairly impressive resume.

I have a question for you about security certificates in Great Britain. How much weight do these certificates carry when it comes to detaining a person in Great Britain?

[Ian MacDonald]

We don't actually have anything quite like security certificates in Britain. But if the Secretary of State decides that someone ought to be deported because they are a threat to security, then the Secretary of State has the power of arrest and detention pending deportation. That, in fact, is what at the moment SIAC is mainly dealing with under its current caseload.

What is happening, of course—I think our opposition may be different from the Canadian one, but we will not deport people either, if there is a risk of their being tortured, because of the United Nations Convention Against Torture, which has been incorporated into U.K. domestic law, or because it would be a breach of article 3 of the European Convention on Human Rights, which forbids absolutely torture and inhumane and degrading treatment. We will not return people in those circumstances, and that applies all over Europe.

What the British government are now trying to do is circumscribe their international obligations by entering into diplomatic agreements, or what are called memorandums of understanding. The first of those memorandums of understanding, one relating to Algeria and a second to Libya, have been before SIAC and will be working their way up through our court system, but we don't expect them to get as far as the House of Lords for a very long time.

So in a sense it's a different approach, but a lot of us have a lot of concerns about memorandums of understanding, because they seem to attempt to bypass very clear international obligations.

And they aren't simply being used in relation to terrorist offences. I've recently done a case where a memorandum of understanding was apparently reached between the Chinese government and the British government about the removal of a police chief who had been giving passports out to people who belong to Falun Gong, the Christian group in China.

There are important legal issues that are raised; there are important issues about the enforcement of international human rights law. There are also difficult factual issues involved with those developments.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Gravel.

We have three more people who wish to ask questions, Mr. MacDonald. We have Nina Grewal of the Conservative Party, and we'll have two more after that.

Ms. Grewal.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Thank you, Mr. Chair.

Thank you, Mr. MacDonald, for agreeing to speak to our committee and share your insights into the detention of terrorism suspects.

After 9/11 and the passage of the Anti-Terrorism Crime and Security Act 2001, how many terrorist suspects have been detained in the United Kingdom?

[Ian MacDonald]

Do you want me to answer that first?

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

And as a special advocate with the special immigration appeal court, how many appellants did you defend? And could you please speak to the drawbacks of the special advocate procedure?

[Ian MacDonald]

As far as the numbers are concerned, there are actually very few people. About 24 people were detained. And of course they had an option if they wanted to go to another country, or found a country they could go to.

One of the detainees, it was discovered, had dual French nationality. He was released from detention and went to France, where he runs a little shop and has been completely undisturbed by the French government, which obviously did not take the same view about what to do with him as the British government did. Another one went to Morocco, and apparently nothing happened to him when he went there.

So if you look at it in terms of numbers, there were very few people. Nearly all of the people were of North African or Jordanian origin, and none of them was in any way suspected of being engaged in actual terrorist acts; they were being detained more because they were suspected of being associated and having links with terrorist groups operating overseas. So they are quite a different breed, if you like, from the British-born terrorists responsible for the atrocities that took place on the London Tube on 7/7.

You then asked about the drawbacks of being a special advocate. The real drawback of being a special advocate in these cases was first of all that the threshold upon which detention could occur was exactly the same threshold on which a police officer could arrest a suspect in the street. In the police officer's case, it's the start of a whole process of obtaining evidence and charging someone or releasing them, and so forth, and eventually going to trial. In the case of those people, it was such a low threshold it was difficult to win any appeals.

There was one case called “M”, which was referred to in the Charkaoui judgment, that was won. All the rest were lost.

The second problem was that when you saw things in the evidence, there was absolutely no way you could go to check what the client had to say about them and ask, did you make a phone call to such-and-such a person, and what's your relationship with such-and-such a person? You could ask none of those questions. You could not take instructions.

Then the other thing is that if you asked certain questions of the intelligence officers who were giving evidence about the assessments, they would have no direct knowledge of various things, simply because they didn't know anything further than the sources they'd used in the assessments they had made. And there was also a very poor link-up with the police.

[The Chair, Conservative, Norman Doyle]

Okay. Thank you.

We will now go to Mr. Karygiannis of the Liberal Party. Mr. Karygiannis.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Mr. MacDonald, I thank you for taking the time to speak to our committee.

I'd like to ask a few short questions, if I may.

[Ian MacDonald]

Yes.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Are there currently any detainees you're working with, or who you know, who are in custody?

[Ian MacDonald]

Well, yes, but I've recently been working as defence counsel in criminal trials, and I am currently doing so.

I was involved in one of the big control order cases, and when the court of appeal quashed the control order on my client, who was under some form of house arrest, he disappeared before the police could serve a new and less restrictive control order on him—and no one knows where he is. So everyone else is going to the House of Lords on that case, except me.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Thank you, sir.

[The Chair, Conservative, Norman Doyle]

Thank you.

The only questioner I have left is Mr. Wilson, from the Liberal Party.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Mr. Chair.

Thank you, Mr. MacDonald, for being here and sharing your thoughts with us.

I have to agree with some of the comments you made earlier. The potential real threat to Canadian liberty and freedom may indeed come more from the unconstitutional laws initiated by the state, rather than the acts perpetrated by the terrorists. I thought it was an interesting comment.

When I heard what you were talking about, two key issues seemed to spring up. One dealt with the fact that the evidence before the special prosecutor cannot be shared with the accused and adequately tested. The second was the problem of obtaining access to the original evidence used to formulate the assessment.

I have two questions for you. First, do you believe your United Kingdom system of a special advocate and special immigration appeal commission adequately balances the fundamental human rights and freedoms of the individual with the security concerns of the state?

[Ian MacDonald]

No. I think where special advocates have in fact been quite useful is not in the area I've been talking about. It's where they've been used in criminal trials and in some terrorist criminal trials to look at the undisclosed evidence and to argue with the judge in private session that it should be disclosed. Of course, if it isn't disclosed, then it won't be used.

I can tell you from my own experience in criminal trials, it would appear that when it was indicated to the police that they should arrest or put under surveillance certain individuals, one of the senior police officers described to me that when they met the intelligence services, they got these assessments. He said he didn't want assessments, because they're nothing but guesswork, and he wanted some evidence.

They have actually been extremely successful in doing what I've indicated is the essential task that has to be performed, which is to be able to turn information received through intelligence into admissible evidence in a court of law.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Yes, one of the recommendations we've put forward is that the special advocate be allowed to test, challenge, and meet the evidence presented. They will obviously have time to discuss it with the accused, come back, and test the evidence. There seems to be a fundamental difference between what we're recommending and what your system has in place right now. Is that correct?

[Ian MacDonald]

I'm not certain that it's actually true. I think the government realized that for detention or complete house arrest, those methods aren't really getting them or us anywhere in terms of being better protected. House arrest means they're not allowed to use the telephone, they're not allowed to have visitors, and their children can't have other children in to play. The only real way to proceed is to use the police to actually collect evidence.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Mr. MacDonald, why wasn't the original evidence made available to you? Why did you only receive assessments? Could you not dig deeper? Why wouldn't they make the original evidence available to you?

[Ian MacDonald]

Well, they don't have the original stuff. If you get an assessment from another intelligence service, you don't have the original.

If there's an informer who is speaking to Algerian intelligence, you're not going to have access to that informer to know whether or not the information is reliable. In fact, you may not even know whether or not anything emanating from Algerian intelligence is reliable. That's the problem.

We are operating on an international scale here. This isn't a domestic crime that we're talking about. There is really a fundamental problem in getting inside those assessments.

What seems to in fact be happening now in Britain is that when the police take over from the intelligence services, they find actual admissible evidence, and they travel far and wide to do so. You'll have evidence from someone who saw a defendant in a training camp in the Philippines, Afghanistan, or wherever. They do that.

[Blair Wilson, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

That's where your conclusion came from that we should be using the criminal courts to test these types of cases instead of using the special advocate system.

[Ian MacDonald]

Yes, but I think there is room for a special advocate, particularly on issues of discovery.

[The Chair, Conservative, Norman Doyle]

Thank you. I'm going to interrupt here, because even though we've reached 12 o'clock, I have some short questions from about four members on the committee.

Mr. Komarnicki first, then Mr. Telegdi.

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

Mr. MacDonald, you indicated that one of the issues in the special advocate system, for instance, was the question of whether the detainee made a call or not. You wouldn't necessarily have to talk to the detainee about that. You could check independent telephone records. You could speak to the potential recipient of the call. There are other ways to gather evidence than going back to the detainee.

If the rules were sufficiently in place to allow you to do that, could you not still achieve the balance we talked about with respect to the protection of the state and to minimum interference with the detainee's rights?