Evidence of meeting #5 for Public Safety and National Security in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was evidence.
A recording is available from Parliament.
9:25 a.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Thank you, Mr. Chairman.
I am very pleased to have heard you here today, as well as elsewhere, previously. I much appreciate the considerable work that has been done. I understand that your aim must be similar to ours. I understand that security certificates are necessary. I also understand why the source of certain information cannot be revealed. Indeed, this might put the lives of people having infiltrated these organizations in danger. Furthermore, it is possible that security agencies not wish that people be aware of their investigation methods.
We see this in criminal cases. A good many accused who belong to criminal organizations plead not guilty, despite their intention to admit to their guilt, because this allows them to find out how the police managed to infiltrate their organization. This can be admissible in the case of ordinary crime, but I understand the desire to not reveal investigation methods when terrorism is involved.
There is a third reason. We receive a lot of information from different countries. Some of them have the same principles as us, others not. The latter often relay information to us on condition that we not make this information public.
In fact, a security certificate could, in the case of any country that does not share our principles, be a purely arbitrary gesture on the part of the Minister, declaring that any sovereign country has the power to welcome to its territory whomever it wishes and to exclude from it those foreigners who represent a danger. Our desire was that this decision not be arbitrary and that it be subject to some form of judicial review in the context of which evidence must remain secret. This judicial review is not a trial, but I believe, just like you, that this legal procedure must be as close as possible to fair treatment, as in the case of a trial. My impression is that the recommendations you have made to us are precisely of this order.
I will be quite blunt with regard to one aspect. You believe that the decision rendered with regard to the party involved should not be based on information obtained through torture. We could have an example, in Canadian law, of information obtained by the police in ways... Let us get straight to the point. When an accused makes a statement, this statement must be made freely and voluntarily in order for it to be admissible as evidence. However, I do not believe that we are deprived of any material evidence that the police may have found, even in the case of a statement which would be inadmissible as evidence. If the statement of an accused is inadmissible as evidence because promises or threats were made to him or her, but that he or she for example stated that the weapon involved in the crime could be found in such and such a place, I believe that the police continue to be allowed to go in search of the crime weapon and to present it as evidence, what we call “physical evidence“. That is the way it was when I practised law, but it does happen that things change in the course of 15 years.
For you, does this rule pertaining to evidence obtained through torture apply just as much to physical evidence as to statements made by people under torture to their torturers?
9:30 a.m.
Conservative
9:30 a.m.
Barrister and Solicitor, As an Individual
Okay.
In England, this issue was already discussed by the House of Lords in a case involving the Special Immigration Appeals Commission, which is their equivalent of the security certificates. The House of Lords ruled that any information obtained under torture could not be admitted as evidence in any judicial proceeding, period.
The reasons for that are (a) the evidence is inherently unreliable and shouldn't be used because of its unreliability, and (b), because if you use evidence that you know is obtained under torture, you're basically becoming complicit in the torture itself.
So the position in England is consistent with the position we've taken in our submission, which is that evidence that is obtained under torture cannot be admitted under any circumstances, nor considered by the judge. Indeed, in Canada the Federal Court judges who have considered this already have taken a similar position in several cases.
In other words, where the counsel has alleged that some of the evidence might have been obtained under torture, and if the judge is satisfied there is evidence that that might be the case, they've refused to consider that evidence in the security certificate.
Therefore, what we're proposing is really consistent with what the House of Lords has said and is consistent with what the judges have been doing in practice.
I think there is an importance to this that goes beyond the process, because we can make the argument before the judge, “You can't accept this evidence because it was obtained under torture”. But by making a public statement in this bill that evidence obtained under torture is not admissible, we are also making a statement about the unacceptability of torture as a means of interrogating anyone anywhere in the world. This is another reason why we believe it should be included.
9:30 a.m.
Conservative
November 29th, 2007 / 9:30 a.m.
NDP
Penny Priddy NDP Surrey North, BC
Thank you, Mr. Chair.
I will take the very first few seconds, if I might, to say that I have had many letters, even in the last 24 hours, from organizations that are concerned that they have not had an opportunity to testify. I wanted to put on the record that correspondence had been received from groups like the Coalition for Justice for Adil Charkaoui, the Justice for Mohamed Harkat committee, Amnesty International, Human Rights Watch, and the Canadian Arab Federation. I may have missed some, but those are the ones that I've heard from, and I wanted to note their concern that they had information they thought the committee should hear and were not being afforded the opportunity to speak before the committee.
I would like to ask either Mr. Forcese or Mr. Waldman this: if there is not an open communication between the special advocate and the detainee, as it is currently stated in Bill C-3 would not be the case, at least not once the special advocate had reviewed the information, could you speak to both what you might see as the legal implications of that, in terms of the court system, and what you would see as the moral and justice implications, if you will?
9:35 a.m.
Associate Professor, Faculty of Law, University of Ottawa, As an Individual
Thanks very much for the question.
The first point to note is that Bill C-3 right now doesn't affirmatively close the door to continued access. It leaves it in the discretion of the judge.
A similar rule in the United Kingdom has produced virtually the absence of access. There is no continued access. Why? Because a similar rule in the United Kingdom has been applied, such that the special advocate, if they wish to communicate with the individual after they've seen the secret evidence, must do so in writing, and their questions must be vetted by the government.
No lawyer worth their salt is prepared to pose a question to an individual whose interests they're supposed to represent when it's first going to be vetted by the government for fear that the very fact of asking the question could be prejudicial to their interests.
In practice, there's no continued access. This has been the single most controversial aspect in the United Kingdom system.
In terms of the implications of absence of continued access, I can recount you a story that was, in turn, recounted to us by the SIRC special counsel, who does have continued access in SIRC proceedings.
If he were here, he would tell you of one case in particular where at issue in the SIRC proceeding was whether an individual had been in a certain country at a certain time. I don't know what the country is. Let's assume it was Afghanistan in the late 1990s, and the presence in Afghanistan in the late 1990s would have suggested that there might have been some problematic aspect to this person's behaviour. Obviously, having been apprised of that information, the independent counsel could not go directly to that person and ask if they were in Afghanistan in 1997 because that would of course betray the basis of the government case and potentially be prejudicial to national security. So all the special advocate asked for was the CV of the individual, which the security service had never thought to ask for. On that CV was an entry by which, upon follow-up, the special advocate of the independent counsel was able to establish, verifiably demonstrated, that this individual had not been in Afghanistan during the material period.
Here is an example of continued access: a very banal question that one would have hoped the security service would have asked in the first place, a very banal question being posed that caused the government's case to collapse ultimately. The entire government's case was predicated on this issue and the government's case was undermined as a consequence of this very banal question.
Speaking to SIRC and to independent counsel, there's never been an allegation that this continued access by SIRC legal counsel to individuals has been prejudicial to national security, that there's been an involuntary disclosure.
We acknowledge that there should be an affirmative obligation on the independent counsel not to disclose the secrets. We believe that any lawyer worth their salt can pose a question in a manner that extracts useful information but does not betray a national security confidence.
That was the case for the Arar commission, and I'm sure Lorne could describe how little information he was able to glean from any of the questions that were posed to him by the Arar commission counsel.
9:35 a.m.
Barrister and Solicitor, As an Individual
I would like to add to that. I was counsel to Mr. Arar, and Mr. Cavalluzzo and his team of lawyers met, read all of the secret evidence, and then continued to meet with us. They would ask us questions, and of course we would say, why is he asking that question? We wouldn't know, but he assured us after the fact that the answers to those questions were extremely important in his being able to undertake an effective cross-examination of the secret witnesses in the in camera hearings. But as he said, “I knew how to ask the questions to try to elicit the information I needed, and obviously I didn't reveal anything, because we would never come away from that knowing anything more than we knew before we came in.”
That is just another example of a scenario in which ongoing contact was permitted. There were no leaks, and yet it made the special advocate, or the counsel in this case, a more effective advocate for the individual.
9:40 a.m.
Conservative
9:40 a.m.
NDP
Penny Priddy NDP Surrey North, BC
Thank you.
Having said that, and having described SIRC, do you see some profound difference, which I don't understand, between the SIRC model and security certificates that would require that in the case of SIRC a question may be posed and an experienced lawyer would be able to pose a question in a way that did not in any way endanger security, while for security certificates there is some legal reason, which I do not understand, for why it should be different?
9:40 a.m.
Barrister and Solicitor, As an Individual
The proceedings are analogous. Indeed, SIRC did do security certificates prior to 2002 for permanent residents, so they were doing them. They followed the same process in the permanent residents' cases that they followed in all the other cases, so there was no issue of any leaks of evidence.
There is no reason why we could not have a similar type of process here. It would be one of the things that I think would go the farthest to make this system a fairer system, which is what we all want at the end of the day.
9:40 a.m.
Conservative
The Chair Conservative Garry Breitkreuz
We will now go over to Mr. Brown, please, for seven minutes.
9:40 a.m.
Conservative
Gord Brown Conservative Leeds—Grenville, ON
Thank you very much, Mr. Chairman.
I'd like to thank our witnesses for coming today.
Mr. Cullen referred to the subcommittee of this committee that reviewed the Anti-terrorism Act. I chaired that committee, and we dealt with security certificates, although they weren't part of the Anti-terrorism Act.
I'm just trying to remember our discussions. One of the reasons that I think the SIRC model wasn't used was that in SIRC proceedings the government-cleared legal counsel who participate in closed SIRC proceedings are in fact SIRC counsel, and their responsibility is to the SIRC process, not to the subject of the SIRC proceedings. That's why the SIRC counsel may communicate with the individual, and the consequences of an inadvertent disclosure really were significantly less. That's why it would not address the Supreme Court ruling.
I wonder what you might have to say about that, both of you.
9:40 a.m.
Associate Professor, Faculty of Law, University of Ottawa, As an Individual
That's true, in the sense that in terms of the obligation they have, the SIRC counsel have a sort of bifurcated obligation. Certainly they are there to serve as the arm, if you will, of the committee member in question; yet they also, in the course of serving that role, serve the best interest of the person who's been excluded from these in camera, ex parte proceedings.
I don't understand why that bifurcated rule makes SIRC counsel less prone to make a slip-up in their questioning than an independent counsel would be in a security certificate context. They would be amenable to the same sorts of penalities; they would be under the same obligations not to disclose secret information. I see nothing in that institutional structure that makes SIRC more amenable to continued access than a properly structured special advocate system would be.
9:40 a.m.
Conservative
Gord Brown Conservative Leeds—Grenville, ON
Okay.
I want to hear a little bit more about the changes that are being made to the U.K. advocate model, because that's what we're looking at. I'm not familiar with the changes they're making, that weren't in their system before.
9:40 a.m.
Barrister and Solicitor, As an Individual
I'll start.
One of the first changes that came into effect....
How long has that been in effect? Is it three years now?
9:40 a.m.
Associate Professor, Faculty of Law, University of Ottawa, As an Individual
It's less than three years, probably two years.
9:40 a.m.
Barrister and Solicitor, As an Individual
Two years.
I think what happened in 2005 was that there was a parliamentary committee that studied...and at that point a lot of the special advocates—special advocates who had resigned—came forward and complained about the system. One of the key changes was the requirement that they create a special advocate support office. What that is, is an independent office of lawyers who have security clearance so they can assist and see the whole file.
The problem we have is.... Let's say I am appointed special advocate. I can't show the file to anyone else in my office; I can't get the assistance of anyone else. I can't retain another lawyer to help me. It has to be someone who has the same clearance and has the same authority to review the file that I have.
That was the biggest problem that special advocates had. We've proposed, in our proposed amendments, a requirement that there be a support office created. That would be extremely important, because without it, really I don't think the special advocates are going to be able to fulfill their task.
9:45 a.m.
Associate Professor, Faculty of Law, University of Ottawa, As an Individual
Two changes are on deck right now, as Lorne mentioned. Now, in the new rules that will govern special advocate procedures, there's a more emphatic obligation to disclose exculpatory evidence. There's an affirmative obligation on the government now to reveal all relevant information, including exculpatory evidence, and then in the new regulations there's a point-by-point discussion of the due diligence the government has to undertake to ensure that it has adequately searched its files to find relevant information. That's coming onstream right now.
The other change, which will follow in the wake of the House of Lords decision at the end of October, which has not yet been codified, is again the idea of a balancing test. How much information goes to the interested party or not will be assessed not simply on whether national security would be prejudiced, but also on whether that national security interest is outweighed by the broader interest in a fair trial. It will now, presumably, be permissible in the U.K. system for information to be disclosed where there's a relatively incidental national security interest, but a massive fair trial interest at stake in the case.
9:45 a.m.
Conservative
Gord Brown Conservative Leeds—Grenville, ON
Okay.
The Supreme Court has upheld almost the entire security certificate regime, except for the part about the special advocate. You're talking about balancing that with a fair trial. Our information is, and we're quite confident, that the Supreme Court would uphold what's being proposed in this legislation. I'm sure that was checked out before it came to Parliament.
Do you sense that something different from this may happen?
9:45 a.m.
Barrister and Solicitor, As an Individual
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.
9:45 a.m.
Conservative
Gord Brown Conservative Leeds—Grenville, ON
So you think, with this legislation as is, it is subject to another challenge.
9:45 a.m.
Barrister and Solicitor, As an Individual
Absolutely. I've been told that by counsel. The counsel who are representing the men on the security certificates now will definitely challenge it.