I can tell you, as a lawyer who may in the future end up on another security certificate case, that if you adopt the bill as is....
You see, what the Supreme Court of Canada said in Charkaoui was that the system was unfair as it was, because there was no person who was in the room other than the Federal Court judge challenging the government's case. So they said there were other models available that could allow for some challenge that would make the system fairer, that would also take into account the need to protect national security.
The government was told that it had to create a fairer model because there were other options, and the Supreme Court listed them without saying, “This is acceptable, this isn't acceptable”. They just listed several options, including SIRC, including special advocates, and including the Arar commission model as well. It was up to Parliament to make the amendments.
Now, if Parliament adopts something like the SIRC model, it would be my position that that's as close as you could come, and the Supreme Court says some departure from the fair trial principles might be permitted. If you adopt the fairest system, there would be no constitutional challenge.
If you adopt the special advocate system here, I will go to the Supreme Court and say, “Well, why did they choose this when they could have had SIRC, they could have had full disclosure, they could have had continuing access? That's not provided for in this legislation, and therefore the new bill is also unconstitutional.”
So if you want to ensure that there's no constitutional challenge, you have to make sure that you provide for the fairest system possible, short of full disclosure. We believe this bill doesn't do that, unless you take into account the amendments that we've sought.
Obviously, the government may have gotten an opinion from their lawyers to differ with that.