I can speak to that a bit. On principle, it just doesn't stand when you look at it logically and legally. I know we are in the realm of politics and the law doesn't fully apply in that way, so that's why I'm offering you recommendations.
So, in principle, we would prefer this either to be moved to the criminal process where there are protections, even for national security evidence, after the Anti-terrorism Act was introduced--and I will leave my colleague, Mr. Allmand, to speak a bit more about that--or we would prefer importing criminal law standards to this.
I would like to correct a little of what Ms. Basnicki said, that it is punitive detention. The Supreme Court has actually determined that, because many Federal Court decisions were saying no, this isn't, and drawing that distinction. But at the Supreme Court, Madam Chief Justice McLachlin said, yes, it is what we know it is. It walks like a duck; it quacks like a duck. This is punitive detention. To be in detention for seven years in solitary...it is detention. It is punitive. We need better processes and standards.
So what I would say is, we're using administrative law principles here, a reasonable standard. Those of you who are administrative lawyers will know that that is the lowest standard with the highest deference to the government.
What I would say is, if we're not importing criminals, ideally in my dream world, my fantasy world, I would have the full, criminal, reasonable doubt standards. If we're not having that, at least think about moving that to where the judge just doesn't say, “Well, the reasonable standard says that of what the minister chose, out of all the evidence pile we had, I chose these three things out of the one hundred that are all incriminating, and I'm deciding you're a security threat, Mr. Mayes.” Is that reasonable? Of course, based on what you put in front of yourself, it is always going to be reasonable. So you get the circular logic. I'm saying move that standard.
The other end of the administrative spectrum is correctness. The minister must be very good in getting the right decision, and the judge can also ask more probing things: you should have looked at this; this is weak.
I think that's better, because that's really what we're trying to get at, the truth. Move it closer to correctness. If you want correctness, I encourage you to do that, somewhere in the middle, yes, but not reasonableness, because this is basically administrative law that deals with dog-catchers and so on. That's not the standard we want here, because (a), we're dealing with possible national security threats, allegedly, that we don't want low standards on, and (b), the flip side is innocent people are being persecuted for something they haven't done.
So for both reasons we need higher standards to find the truth.
