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.
9:45 a.m.
Conservative
The Chair Conservative Garry Breitkreuz
Thank you.
I think we have time for one more round.
Ms. Barnes, please.
9:45 a.m.
Liberal
Sue Barnes Liberal London West, ON
Thank you very much. I too would like to have a list circulated by the clerk of all the other witnesses, all the other people who have applied to be witnesses, and if they've tabled any submissions, maybe they could circulate those.
9:45 a.m.
Conservative
The Chair Conservative Garry Breitkreuz
Let me reply to that right away, because I was going to do so at the end of this round.
All the submissions are presently being translated, and they will all be submitted to the committee, of anybody who applied. All those submissions will be available to all of us.
9:45 a.m.
Liberal
Sue Barnes Liberal London West, ON
Okay, but are there some potential witnesses who didn't submit submissions? I'd also like their names, because I'd like to know who applied to be witnesses, that we didn't get their names.
9:50 a.m.
Liberal
Sue Barnes Liberal London West, ON
Thank you very much.
I really appreciate the work you did over the summer and your appearances here today.
I'd just like you to go over in a little bit of detail the House of Lords' October 31, 2007, decision and how it would impact what we're trying to do here. I think you talked about the changes that had been made, but because of the 2007 House of Lords decision, you are anticipating further changes, and I'd like you to go over that.
Because it's only a five-minute round, I'm going to keep quiet and let you go over, in more detail, the suggested amendments to make this a fairer system. Thank you.
9:50 a.m.
Associate Professor, Faculty of Law, University of Ottawa, As an Individual
The House of Lords decision was a challenge that, amongst other things, looked at the use of special advocates in what in the U.K. are called control orders, which are basically a form of house arrest.
The House of Lords, on the whole, said that special advocates are a compromise. On the whole, they seem an adequate compromise, except that there has to be a residual expression for the judge to preserve the inherent fairness of the trial in circumstances where the special advocate doesn't do that. So there has to be a residual discretion on the part of the judge to weigh the national security interest against the fair trial interest, and if the fair trial interest prevails, to disclose the information to the interested party, and if the government doesn't like that, it will have to withdraw its information and its case may collapse as a consequence.
That's what the House of Lords said on October 31, and that's going to have a bearing on the special advocate system, writ large, in the United Kingdom.
What we're proposing doing in the amendments and on this issue in the balancing—in our submission, which you may have before you, it's on page 10, in relation to clause 83—is simply grafting on to the current test for how much information goes to the interested party, that same balancing. We simply borrowed the same language that's in our Canada Evidence Act right now. So if this wasn't an immigration proceeding, if this was just a regular proceeding in a Canadian court and the government wanted to withhold something on national security grounds, it would go in front of a Federal Court judge, and the Federal Court would weigh the national security interest against the fair trial interest.
In IRPA, under this bill, the Federal Court just stops when it gets to the national security issue. It doesn't do a weighing, at least according to the language of the statute. So we're just harmonizing with the Canada Evidence Act and we're harmonizing with what the House of Lords has said is necessary in the United Kingdom.
9:50 a.m.
Barrister and Solicitor, As an Individual
If I could just add one recent example of how important that is, in the Arar case itself, the government withheld 1,500 words, and we went to court and got 500 more words. The 500 words we got were not words that anyone who looked at them after the fact thought were reasonably protected on national security grounds, but they were words that were highly embarrassing to the RCMP and the government. They failed to tell the justice of the peace who was doing a search warrant that the information they were relying on might have been obtained under torture and things like that. So that's why we think it's extremely important that the judge have that discretion.
You asked for other amendments. We could go through them. We think it's important that in the bill itself you include clear criteria for the selection of special advocates. It will make the system far more credible in the eyes of the public if you put in the bill that special advocates have to be lawyers. That's not even in the bill now. They have to have 10 years' experience. They have to have trial experience.
The other thing that would be in the bill is that the person have an option of electing, if he so chooses, from a list of special advocates. I would say it would make the bill more credible if you put in the bill that there has to be adequate support available to special advocates so they can properly exercise their function. The concern we have now is if it's not included in the bill, you're going to appoint special advocates, and they're not going to be able to do their job properly.
We've touched on the relationship between special advocates, we've touched on tortured evidence, and we think one of the other key issues that hasn't really been addressed is the question of limits to indefinite detention. The way the bill is drafted now, you could be under a security certificate forever. What happens is if you can't be deported because you're going to be tortured, you can't be sent away, but you could still be detained.
So we think it's important that at a certain point, when there's a decision that you can't be deported because you're going to be subject to torture and the courts or the government decide that makes it impossible, then the certificate has to allow for release, which would mean the government would have to choose other options to deal with the person. You can't have indefinite detention under an immigration process when deportation is no longer possible.
9:55 a.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
I thought the same thing as you when I read the bill for the first time. Indeed, I had understood that the special advocate was not bound by solicitor-client privilege in the context of his or her conversations with the individual. I see that you have taken note of this as well and are suggesting that solicitor-client privilege apply.
Generally speaking, solicitor-client privilege applies in all civilized legal systems so as to ensure that the individual who consults a lawyer is able to place his or her trust fully in that lawyer with the knowledge that the latter will not reveal what the client tells him. The lawyer is bound by solicitor-client privilege.
However, you are proposing that subsection 4 of Clause 85.4 provide that the judge be authorized to order that a member of the Review Committee attend this meeting between the special advocate and the individual. In such a situation, how could the individual have as much trust with regard to the conversations he is to have with this special advocate if he sees the latter accompanied by a member of the security service?
9:55 a.m.
Associate Professor, Faculty of Law, University of Ottawa, As an Individual
On the first point, on the issue of professional responsibility, right now the bill says the individual is not in a solicitor-client relationship. So there's no solicitor-client relationship between the special advocate and the individual concerned, which begs the question, if it's not solicitor-client, what is it? In other words, is there a duty to confidentiality in relation to what the special advocate might hear from the interested party?
What we propose is that duty of confidentiality be expressly grafted onto the bill, if only because a lot of my colleagues in the practising bar will have the same question and might be deterred, frankly, from being a special advocate unless their special professional responsibility is clear.
You asked specifically about subsequent meetings between the special advocate and the individual after the special advocate has seen the secret evidence. What we suggest in the bill is if the security services have this concern about a special advocate perhaps involuntarily disclosing or not somehow being meritorious enough, then one of the lawyers from the Security Intelligence Review Committee, which is not the security service, be in the room. That's the arm's-length review body for CSIS. But we're also suggesting that that lawyer be subject to the same confidentiality requirement as the special advocate is under. So we're preserving the confidentiality requirement for both those individuals.
Frankly, the only reason we're proposing that SIRC be in the room is to anticipate government objections to the special advocate being there alone. In practice, in relation to SIRC proceedings, if they have outside counsel, my understanding is that outside counsel is typically accompanied by the SIRC lawyers themselves in terms of meetings with the complainant.
9:55 a.m.
Barrister and Solicitor, As an Individual
I just want to add two things.
One is that the reason they do that in SIRC is to protect the lawyer as well. If I've read the secret file, I'm not going to want to go into a room by myself and then have an allegation a year later that I said something I wasn't going to. You need to have that protection there. To our way of thinking, the closest you can come is to have someone from SIRC available to be a witness as to what was said and to perhaps advise if a lawyer thinks a question might be inappropriate.
9:55 a.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
I understand. You are telling me that this is contained in paragraph 5. I had not understood that.
I however remain skeptical. What attitude will the person wishing to have a special advocate he or she is able to trust have when that individual sees the advocate accompanied by another lawyer who is there to supervise the special advocate in order to ensure that he does not divulge to the individual information that this person should not have? One must have a very well trained legal mind to understand all of these subtleties. I am not convinced that the individual involved will be as trusting as we would like him or her to be.
I understand that you have provided for that in paragraph 5, but the language could perhaps be a little clearer. I understand that that is what you wanted to say.
I however remain skeptical with regard to the level of trust that the individuals involved will have in this regard. I also believe that the use of the word “défenseur“ is deceptive. That is not what this is about.
10 a.m.
Conservative
The Chair Conservative Garry Breitkreuz
We really have no time for a response; I'm sorry.
Mr. MacKenzie is next.
10 a.m.
Conservative
Dave MacKenzie Conservative Oxford, ON
Thank you very much for being here. I do appreciate your comments and what we've heard today. I think they will add a great deal to what the committee has, because of your experience.
One of the things I noticed, particularly with my colleagues opposite, is that when you said some of these issues will be challenged in court if they are put in, in the current manner, you suggested that if we accept the SIRC model, or some of your suggestions, they wouldn't be challenged. I'm not sure that's really a fair assessment. My experience has been that the role of a lawyer is to challenge the legality of these things against the charter.
Is it really fair to say that if we accept what you suggest, they won't be challenged by someone? Perhaps it won't be by you--you understand it--but by someone else who understands it a different way and feels the need to challenge it.
10 a.m.
Barrister and Solicitor, As an Individual
I'll go first.
Obviously there will be lawyers who will challenge anything. I belong to the school that doesn't challenge. I don't do things unless I think I have a reasonable prospect of success. I suppose what I was saying was that my reading of the Supreme Court of Canada decision accepts that there can be a departure from the normal rule of full disclosure to the person. What the Supreme Court says is that the current system doesn't do the job, because there are other options that are better, so I take that to mean that the job of Parliament is to give the best possible option.
After all our research, we've concluded that the best possible option is something like SIRC. If you were to adopt something close to this, I would not be able to go before the Supreme Court, after having written this report, and with any credibility say to the Supreme Court that it's not good enough, having put my name and Professor Forcese's name to this report.
Now, there may be someone who would still want to challenge. My personal opinion would be that they would have an extremely difficult time in doing so if you adopt the amendments we've put forward.
10 a.m.
Conservative
