We have prepared a written submission on this legislation, but I just wanted to reiterate that many of these groups have called me personally. I want to put on the record that many people in this country believe that this is a rushed process when it doesn't need to be a rushed process; that they can give you some useful input; and that people in direct contact with the detainees--and I would argue the detainees themselves--should come and speak to you.
I'd like to speak for a few minutes at the end of my opening about the human element. I've met with some of these people. I've been in their homes. I suppose that when we don't have human contact, it's easy to turn someone into a cardboard cutout of what threat they pose, but when you see the human effects, it isn't as easy as we think.
The Canadian Muslim Lawyers Association--and I take a further step beyond that and say the Muslim community in this country, Canadian Muslims--absolutely agree with Ms. Basnicki. We reject violence unequivocally, against all civilians, by state and non-state actors anywhere on this earth. My organization is committed fundamentally to the rule of law and accountable government. As a lawyer, it's a little corny, but I am still wed to those principles, and, really, I don't think there is a balance. I don't think we need to make this a zero-sum game of saying that we need to trade civil liberties or our fundamental values to make this country safer. In effect, you've just heard Mr. Forcese and Mr. Waldman--and I'll speak to these issues as well--say that when we strengthen the values of this country, then we keep Canadians safer. When we have secrecy, we have darkness.
We don't know if these men are innocent or not, and I can tell you that some of the men on these certificates have told me explicitly, “When you speak to these people, they're important people. Tell them I don't want to be let go. That's not what I'm asking for. I'm asking for a fair trial, and if I've done something wrong, then so be it.”
I can also tell you that one of the men loves this country; despite having been in detention for many years and being away from his family, he loves this country and what it stands for on paper. I just wanted to make that clear on the record.
In my submission you'll notice I've thrown in a little bit of literature, a little flair, from Franz Kafka's famous book The Trial. The opening sentence--I'll just read it out--is: “Someone must have been telling some lies about Joseph K., for without having done anything wrong, he found himself arrested one morning.”
I find that quite interesting when I'm working on the security certificate process and talking to these families. They're caught in this web of absurdity. You're told you're a bad person. You've done X, Y, and Z, but there's no way for you to punch yourself out of that paper bag. It's frustrating as a human being. To me, as a lawyer, it's frustrating, because it breaks every principle of law that I've been taught as a lawyer. We know what Paul Bernardo and Karla Homolka have done. We've seen the evidence. They had an open trial. Karla Homolka effectively served less time than all of these men cumulatively have served in detention.
All we're asking for is a fair shot, and really, that's what our evidence speaks to.
I'll quickly go through what's in my submission, but I'll ask you to look at that if you can. My detailed recommendations are on page 10 of the submission. There is some discussion of what the Supreme Court lays out as what I think are the road map and guideposts for Parliament in redrafting this legislation, and I'll speak to that a bit.
Our principal position is--and I believe Mr. Allmand is going to echo this--that it is fundamentally wrong to treat citizens and non-citizens in a distinct way when we're dealing with national security. The immigration issue is now a subsidiary issue. I know that for various reasons the Supreme Court has rendered this decision and we're going down this road; I'm ready to offer recommendations, but on the record, our principal position is this: the House of Lords in 2005 clearly followed the law to its end logic, which said that when there are equal threats from a citizen and a non-citizen, you can't treat non-citizens with harsher means, because then that triggers minimal impairment issues similar to those we have in the charter.
The Charkaoui decision looked at the security certificates, and I think Chief Justice McLachlin laid out a number of guideposts, I would say, and directions for Parliament to follow. I'll just hit a few of those, because I don't want to take too much time here.
Essentially any substitute mechanism to a full and open process must be meaningful, substantial, and provide informed participation by the subject party. Chief Justice McLachlin then said what we all know; fundamental justice in section 7 is what every lawyer knows, back to the common law of 400 or 500 years ago--that its full answer and defence is to know the case against you and have the ability to answer that case. Back to the kings of England when they had the rights of monarchs, these principles were laid down.
So it's beyond the charter. It goes back much further. Those are your guideposts in drafting this legislation.
Do I think it meets that? No, I don't think it meets what full answer and defence is. I don't think it meets knowledge and answering, and I can talk about that in a bit more detail in our discussion.
The recommendations we put forward.... I'll just walk through them quickly and I'll ask you--in questioning, we can elaborate a bit more--that there be some substantial representation. The other witnesses have talked about it. You can't stop the communication between advocate and the subject party once they've seen the evidence.
I think there are ways around that. SIRC has proven it. Mr. Cavalluzo has proven it in the Arar commission. I think we saw that in the morning's testimony, so I won't give those examples of how you can craft a way so that it's a robust, organic process. Any lawyer knows that. That was why your client.... I mean, it's not a lawyer-client relationship in this case, but that relationship between you and the person you represent has to be ongoing and healthy.
That's the best way to search for truth, because at the end of the day, I think all of us agree that the adversarial process is the search for truth. When we find the truth, if these men are guilty of something, yes, we are safer. If they are not, let's not waste resources chasing red herrings and persecuting families, essentially, that are innocent. So the search for truth should be our touchstone.
Resources and independence--I think others have talked about that, that the roster should be made independently of government, that persons should be able to choose, and a number of other things, and it should be fully resourced and staffed so they can actually be effective. I'll leave that for you to read, and we can talk about that.
I was pleased to read the transcript of Mr. Day's testimony in which he says we do not approve of torture-derived evidence and we don't approve of torture. That is exactly Canada's commitment under the Convention against Torture, international refugee law, and pre-emptory norms of international law, which are basically the moral norms that nobody can transgress in international law. If we agree to all of that, then why don't we simply write it down? I think it would add more certainty and comfort if we wrote that down. I think Mr. Day has agreed that we don't take evidence from torture, so let's write that down.
I would also add that in the Suresh exception, the Supreme Court opened the door just a crack to say that we don't deport people to torture, except in certain circumstances. That is a breach of the Convention against Torture, our treaties under international law and refugees, as well as pre-emptory norms again.
The Supreme Court, I think, made a mistake there, and it's embarrassing when someone wants to fix that mistake. Parliament can lead on this. I think you have it in your hands now to legislate away that thing, take the moral high ground and say we don't deport people to torture. Plunk that in here and then that gets away from this problem, because now we're having problems where government lawyers are arguing to deport people to torture.
I'll leave the others for later. I'd simply like to close by saying that what we need is a fair and efficient process, and at the end of the day, I would invite you to personally go--and I can arrange this--to meet with these people in their homes. They're not as scary as they're made out to be. At the end of the day, they're human beings like you and me.
I got a call the day before I came from one of the gentlemen. He said “Please tell them”--that's you--“it's not about me. My kids are now prisoners.” He can't go to the backyard. He couldn't go to Eid prayers. Even though he follows all the processing rules, it was just refused.
So at the end of the day, this is all about families and fairness.
I look forward to your questions.