Public Safety Committee on Nov. 27th, 2007

[Dave MacKenzie, Conservative, Oxford, ON]

If the bill is passed February 23, on or before then, how does it apply then to the people who are currently either being held or are on release?

[Lynda Clairmont]

Then the ministers of immigration and public safety would receive new security certificates, which they would be required to sign. Then the individuals who are being either detained or are on conditions of release would go through the process before the court with a special advocate.

[Dave MacKenzie, Conservative, Oxford, ON]

So they would then have reviews within 48 hours and all of the provisions of the act would then take place, giving them these rights that they perhaps didn't have in the past. Is that correct?

[Lynda Clairmont]

Yes.

[Warren Woods]

The bill itself has transitional provisions towards the back of it. Those provisions capture how the current cases would be treated under the new legislation, if new certificates are issued against individuals currently subject to a certificate. Obviously if a person is detained, they would need to have a new detention review and a special advocate would have to participate there, and new reasonableness hearings before the Federal Court would occur and a special advocate would have to be there. There are other details that are contained in the transitional provisions that are essentially there to provide an orderly transition between the existing process and the new, and to also give the individuals the benefits that were ordered by the Supreme Court in the Charkaoui decision.

[Dave MacKenzie, Conservative, Oxford, ON]

One of the things that we frequently hear is some issue with respect to the U.K. system, and perhaps what some would view as a shortcoming. My understanding is that the Supreme Court of Canada did look at the U.K. model and had some recommendations. I would feel comfortable, but I would like to hear from you folks that you've looked at the U.K. model. If there are areas that we can improve, can you tell us what they might be, and what differences there are in the two models, the first being proposed here and what the U.K. model is?

[Lynda Clairmont]

First of all, we did look at the U.K. model, particularly with respect to the special advocates. I think when the minister was testifying he indicated some of the differences between what we're proposing and what exists in the U.K. system. Essentially, what we tried to do was to look at the system—and we went mostly from the Supreme Court decision—and as the minister said, we tried to learn lessons that the U.K. had.

Did you want to speak directly to some of the actual differences?

[Daniel Therrien]

Let me start with what the Supreme Court actually said in Charkaoui about this, because that involves your role as parliamentarians. The Supreme Court, in Charkaoui, found, as the minister said, essentially two flaws in the current security certificate process, one of them being that the individual who is the subject of the certificate, because he or she does not see all of the evidence, was not treated fairly according to section 7 of the charter.

The court does not actually precisely mandate a special advocate regime. What the court does is find the current process, in that respect, unconstitutional and says there should be an improvement, some modification to the current process, to replace or accommodate for the fact that the individual will not be able to see all of the evidence. So the court accepts that, except that it's necessary for the government to act in a way that does not give all of the evidence against the individual. Obviously this is an exceptional process, but the court accepts that. It finds that the process as currently constructed is generally unfair, in part because of its reliance on the Federal Court to test the evidence, and then it says it's up to Parliament to devise a way to make up for the flaw.

In its judgment, the court looks at a number of alternatives, including the U.K. system and others. We look to the U.K. system because there is a lot to learn from their regime, from their laws. We were driven to the U.K. system, which we did not apply completely but in good part, in part because the Supreme Court mandate was to make sure that the special advocate represents the interests of the individual. The only living example of this was the U.K. special advocate system, so that was essentially how we got to the U.K. model as the starting point.

There are differences between what we have and the U.K. model. Before I get to the differences, let me point out, perhaps after hearing from Ms. Priddy, that the U.K. House of Lords had occasion to look at the new special advocate system recently and it essentially found that system to be in accordance with U.K. law and European law. So the system was found to be good.

[The Chair, Conservative, Garry Breitkreuz]

I'm sorry, what you're telling us is very interesting and very helpful, but the time is up. Maybe a subsequent questioner will allow you to complete your answer here, but just in fairness to everybody who still would like to put some questions on the record, I apologize.

[Daniel Therrien]

Sure.

[The Chair, Conservative, Garry Breitkreuz]

We'll now begin again with the Liberal Party, and then we'll go to the Bloc, the New Democratic Party, and the Conservative Party.

Ms. Brown.

[Bonnie Brown, Liberal, Oakville, ON]

Thank you, Mr. Chairman, and welcome to all the witnesses.

Because all cases lean pretty heavily on evidence, I'm wondering if anyone here present has actually had the occasion to read through a file that contains the secret evidence on any one of these people who we've already had under security certificates. Is there anyone here who has that experience of reading through the secret evidence?

[David Dunbar, General Counsel, Canada Border Services Agency]

I had the occasion to look at the secret evidence in relation to Mr. Zundel, not one of the current cases but a previous case.

[Bonnie Brown, Liberal, Oakville, ON]

That's a domestic case, as opposed to a case where the evidence comes from overseas.

I'm wondering, in those cases, what percentage of the evidence was gathered by agents of the Canadian government as opposed to agents of other governments. But no one knows that because no one has read through the evidence in any of those cases of people who are currently either in detention or released under conditions. Those are the cases I'm interested in, not a domestic case like Mr. Zundel.

So no one here has any experience of....

[Roy Cullen, Liberal, Etobicoke North, ON]

I have. I'm not saying a word.

[Bonnie Brown, Liberal, Oakville, ON]

Yes. He's fascinated by an Iranian assassin.

So he has read through the evidence, but does anybody know what percentage of that evidence was gathered, let's say, by the CIA, the group that brought us weapons of mass destruction in Iraq, which never existed, or perhaps the group that told us all about Maher Arar and that incorrect evidence?

So how can you people be putting this forward unless you're absolutely sure that Canadians with Canadian values assembled the evidence? Do you have any kind of guarantee that this happened or that it's actually gathered from a consortium of international spy agencies?

[The Chair, Conservative, Garry Breitkreuz]

I have trouble, Ms. Brown, with all due respect, with how this relates.

[Bonnie Brown, Liberal, Oakville, ON]

Of course it relates absolutely directly, Mr. Chairman, because the whole issue of full disclosure of the evidence is one of the key points in the researchers' notes. So the question I have, before I'd move to full disclosure, is how do we know the evidence is valid or invalid?

[The Chair, Conservative, Garry Breitkreuz]

Does anybody want to tackle that?

[Daniel Therrien]

I can try to answer. I haven't read the entire file, so I do not speak from that experience, but even in the current system and in the new system one important safeguard is the role of the Federal Court.

The Federal Court reviews all of the information and only confirms the validity of the certificate if it is of the view that it is reasonable, based on the evidence it sees. The Federal Court hears the evidence, sees the CSIS agent who has prepared the report or is involved in the preparation of the report, but at the end of the day, the Federal Court is a very important safeguard in addressing the issue. And the Supreme Court never indicated that this part of the Federal Court role was invalid or not reasonable. So that remains. It exists and it remains. What the Supreme Court did was more to say that the fairness towards the individual left something to be desired, but in terms of testing the validity of the information upon which the certificate is based, the Supreme Court did not find any fault.

[Roy Cullen, Liberal, Etobicoke North, ON]

On a point of order, Mr. Chairman.

[The Chair, Conservative, Garry Breitkreuz]

Yes, Mr. Cullen.

[Roy Cullen, Liberal, Etobicoke North, ON]

With respect to my colleague, I want to note that the availability of this information has to do with security clearance, and what you're basically asking these officials is what level of security clearance they may or may not have. But ultimately the minister and those who are sworn under the Privy Council and others, senior officials, are privy to that information. So there's no excuse. That information is available to the minister and to others, and other senior officials. But to put people on the spot to find out what their level of security clearance is I think is inappropriate.

[Bonnie Brown, Liberal, Oakville, ON]

No, I wasn't trying to find that out. I was trying to raise a question about the validity of the evidence as collected when we already have international examples of evidence collected and used against people or for other purposes when the evidence five years later was proved to be totally faulty. I'm just trying to put that on the table.

Moving on to—

[The Chair, Conservative, Garry Breitkreuz]

You're way over time now, so I'm sorry.

We'll go over to the Bloc Québécois. Mr. Ménard.