Public Safety Committee on Nov. 29th, 2007

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order.

This is meeting 6 of the Standing Committee on Public Safety and National Security. We are continuing with our study of Bill C-3, an act to amend the Immigration and Refugee Protection Act on certificate and special advocate and to make a consequential amendment to another act.

We have a number of witnesses we'd like to welcome this afternoon. We have the law or bar association from Quebec. We have also the Canadian Bar Association and the Federation of Law Societies of Canada.

According to the information I have, you agreed among yourselves that the Canadian Bar Association would go first, then the Federation of Law Societies of Canada, and last of all the Barreau du Québec.

The usual practice at this committee is to allow approximately ten minutes for an opening statement from each of you. Then, of course, we go to rounds of questions and comments.

If you're ready to begin, please introduce yourselves briefly, and then go ahead with your presentation.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair.

My name is Tamra Thomson, and I am the director of legislation and law reform with the Canadian Bar Association. With me today is Maître Isabelle Dongier, member of our national citizenship and immigration law section and one of a team of several lawyers who created the submission you have before you today.

Perhaps it would be best to start with a brief distinction among the various groups that appear before you today. The Federation of Law Societies is the umbrella organization of the various regulators of the legal profession, the law societies. And the Barreau du Québec is indeed one of those regulatory bodies within the province of Quebec, regulating the lawyers within Quebec.

The Canadian Bar Association can be distinguished from our colleagues the regulators, for while we are lawyers and all members of a law society, the Canadian Bar Association is a professional association that speaks for lawyers. Among our primary objectives are to work toward improvement in the law and improvement in the administration of justice.

It is in that optic that we have prepared the submission we are presenting to you today, and we look forward to your questions.

[Isabelle Dongier, Lawyer and Member, Citizenship and Immigration Law Section, Canadian Bar Association]

Thank you, Mr. Chair.

It is an honour to be here today to contribute to your important work on Bill C-3.

The right to a fair hearing is a fundamental value at the heart of the administration of justice in Canada. It dates from the Magna Carta. It distinguishes us from dictatorships, autocracies, and oligarchies. It defines us as a true democracy that protects the rights of the individual against the power of the state. It is all about the end not justifying the means.

The Canadian Bar Association, like all Canadians, denounces terrorism, of course. The government has a legitimate duty to protect its citizens, but in doing so we must not undermine our most fundamental values.

The Supreme Court of Canada in Charkaoui told us that the protection of national security does not justify the absence of an independent challenge to the government's case. In our view, Bill C-3 in its current state does not meet the constitutional concerns raised by the Supreme Court in Charkaoui. It does not go as far as it can to ensure a fair hearing, to ensure the individual knows the case against him.

You've heard some of them this morning, but let me remind you of some examples of why this is. Bill C-3 does not allow the special advocate to properly question or challenge the evidence. It also preserves the situation whereby some secret evidence is not tested because it may not be disclosed to the judge and to the special advocate. It allows the government to rely on evidence obtained under torture. It does not spell out the relationship between the special advocate and the named person, nor does it sufficiently detail the special advocate's role. In addition, it does not guarantee adequate infrastructure support for the special advocates.

These and other issues are outlined in our written submissions, and we also suggest a number of changes to bring the law into charter compliance. This morning you heard Mr. Waldman and Professor Forcese, and you will note a lot of similarities between our respective positions. The CBA endorses their recommended changes.

We believe there must be an express obligation on the government to fully disclose its evidence to the judge and the special advocate, not just the information it seeks to rely on.

I would like to focus on two aspects of the relationship between the special advocate and the named person. First of all, the special advocate's role is to protect the interests of the named person, but for him to be able to realistically challenge the government's evidence in an informed way, he must be entitled, as of right, to communicate with the named person even after the disclosure of the secret evidence. As Mr. Waldman told you this morning, of course this would be subject to an obligation not to disclose the secret evidence. Second, while this advocate is not in a solicitor-client relationship with a named person, we believe he should not be compelled to reveal information disclosed by the person. There should be no suggestion that the special advocate is becoming an arm of the state against the named person.

Our submission includes a number of recommendations. In our view, they are all necessary to meet the constitutional imperatives outlined by the Supreme Court, and we ask you to recommend these changes to the House.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

As you've done your submission, we will now go to the Federation of Law Societies of Canada.

[Michael W. Milani, Q.C., President, Federation of Law Society of Canada]

Thank you, Mr. Chair.

My name is Michael Milani. I am from Regina, Saskatchewan, and I am here in my capacity as president of the Federation of Law Societies of Canada. With me is Ms. Frederica Wilson, our director of policy and public affairs.

As the name denotes, and as my friend Ms. Thomson indicated, the federation is the umbrella organization for the regulator of the 95,000 lawyers and 3,500 notaries from Quebec. We're required by law to govern the legal profession in the public interest. Each law society is responsible for governing its own members. And I want to make it clear to the committee that the federation and its law societies do not act in the interest of lawyers. They regulate lawyers, and they regulate lawyers in the public interest.

In that capacity, the federation and its members recognize the very difficult task of balancing national security concerns with the protection of civil and human rights. The need to protect the public from the threat of terrorism necessarily results in some limits on civil and human rights for citizens, permanent residents, and foreign nationals. We must be vigilant, vigilant about legislation that is too broad in scope or that unreasonably compromises those rights. Since the anti-terrorism steps taken in the wake of September 11, the federation has spoken on this on a number of occasions, advocating that proper steps be taken in order to ensure the protection of Canadians, but with as little harm done as possible to the important principles underlying the rule of law.

The fact that an individual may be deprived of his or her liberty on the basis of evidence that neither the individual nor the individual's counsel is permitted to answer unquestionably violates those rights and frankly offends all of our deepest notions of justice. The appointment of a special advocate is an attempt to address those concerns, and the federation supports the special advocate regime. It's important to recognize that the mere appointment of such an advocate will not eliminate the infringement of rights, and the process will not provide for what we as Canadians traditionally and typically consider a fair trial. For that reason, it is all the more important that there be a minimal impairment of those rights and that all necessary steps be taken to ensure that the special advocate can be as effective as possible in protecting the interests of the named individual.

This committee has a great responsibility and, in my respect for you, a tremendous opportunity to help create a system that ensures that the overall goal of protecting the security of Canada and its people from terrorism is met, while at the same time providing for a process that is more fair to the named person. The federation has a particular expertise in matters concerning the role of legal counsel in upholding the rule of law, in the administration of justice, and a particular understanding of the nature and importance of the relationship between counsel and the people they represent. For that reason, in my remarks I will focus on the special relationship between the special advocate and the person named in a security certificate.

It is implicit that the special advocate must be a lawyer, but we note that the bill does not say so. We would respectfully suggest that it is a very simple change to make and an appropriate one. We understand the need for secrecy, but we submit that in order to allow the relationship to work the bill should provide more clarity on the nature of the relationship between the special advocate and the named person. In other words, the bill is very clear that there is no solicitor-client relationship, but it doesn't go beyond that, it doesn't say what the relationship is, and it's necessary to make the system work that the bill do so.

Firstly, it should be made clear that any information provided to the special advocate by the named person is held in strict confidence. Confidence is one of the attributes of a solicitor-client relationship, but by taking that away, that requirement of strict confidence is gone unless it is expressed. Although the solicitor-client relationship will not exist by building in the importance of strict confidence, and remembering that lawyers will be governed by law societies even outside the solicitor-client relationship, there is a good and solid protection for proceeding in the way that's proposed. Because the bill removes the normal solicitor-client protections, it's necessary to build some back in, and the most primary one is that information will be received and retained in strict confidence.

Beyond the duty of confidentiality, we also respectfully submit that the special advocate must have the ability to speak with the named person, even after the special advocate has seen secret evidence. You've heard this comment from others before this committee, but I'm providing it to you through the lens of the legal profession and the lens of the regulators of the legal profession.

The special advocates will be lawyers who are skilled and experienced in dealing with sensitive information and with overarching ethical and legal obligations in respect of such information. Similar systems have been used in other circumstances.

Our written submission speaks of the Security Intelligence Review Committee. There has been no suggestion that there was ever a breach of obligation or failure to respect that secrecy in the 20-odd years the system has been in place. Similar arrangements were made in the Arar commission of inquiry and in the Air India trial when dealing with secret evidence.

Without providing for the ability of the special advocate to continue to speak to the named person after hearing the secret evidence, the danger is that the special advocate will be in no better position than the trial judge in the case the Supreme Court considered, which led in part to the Supreme Court's decision.

It is evident that the bill was modelled on the United Kingdom legislation. That system has flaws. As recently as October 31 of this year, the House of Lords stated that merely having a special advocate system would not save the process. The system must be appropriate and effective.

The committee has heard testimony from departmental officials that these deficiencies in the bill can be addressed in the regulations. In our respectful submission, that is not the place for fundamental matters to be addressed, even assuming there could be a regulatory fix. It is essential that the language of the bill be clear and complete and that the fundamental importance of the special advocate, his or her independence, the duty of confidentiality, the right of the named individual to select the special advocate, and the need to allow that advocate to consult on an ongoing basis with the named individual be recognized. These ought to be in the legislation.

Ladies and gentlemen, Canada has been a leader in creating strong and effective anti-terrorism legislation, but against the canvas of due process and fair proceeding. Canada could learn from what others have done, but ought not to replicate their mistakes. The world is watching what Canada does here.

Thank you.

We would be pleased to answer questions when appropriate.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

And last of all, the Barreau du Québec.

[Pierre Poupart, Lawyer, Member of the Committee on Human Rights and Member of the Committee on Criminal Law, Barreau du Québec]

Good morning, my name is Pierre Poupart. I am a lawyer and member of the Quebec Bar. With me today are Mr. Langlais, an immigration lawyer, and Ms. Nicole Dufour, who is in charge of the Research and Legislation Service for the Barreau du Québec.

To begin with, I want to point out that the Barreau du Québec is a professional body whose primary mission is the protection of the public. It is an essential institution within a society such as ours, which is based on the rule of law. As such, it carries out its social responsibilities by standing up for fundamental values that are inherent in a free and democratic society, including equality under the law and respect for human rights.

The working group's report which, I hope, has been provided to Committee members, is the result of a lengthy period of reflection during which members of the Human Rights Committee of the Barreau du Québec, the Immigration and Citizenship Advisory Committee, and the Criminal Law Committee gave a great deal of thought, I have to say, to this issue for many months.

On February 23, 2007, in the Charkaoui ruling, the Supreme Court recognized the utility of the security objectives pursued through the security certificate process, specifying, however, that the latter should not be carried out at the expense of procedural fairness and principles of fundamental justice. On October 22, the Government of Canada tabled Bill C-3, which maintains the use of secret information while introducing a system of special advocates. The Barreau du Québec has concerns about the merits of such a solution, which does not seem to meet the requirements underlying the principles of procedural fairness and fundamental justice.

First of all, as regards continued use of secret information, a person subject to a security certificate will still be deprived of certain fundamental rights guaranteed under section 7 of the Canadian Charter of Rights and Freedoms, including disclosure of the evidence and the right to a fair hearing. Parliament seems to have decided to create the special advocate position to address the fundamental justice problem raised above.

Our first comment has to do with the fact that the special advocate will not necessarily be a member of a professional body that regulates the conduct of members of the legal profession. As regards the special advocate's role, the Bill talks about protecting the interests of the named person in specific circumstances. However, this central function, which is generally carried out by counsel, must be questioned. The special advocate, in particular, is retained and may be dismissed by the judge. Furthermore, as we pointed out, after seeing the secret information, the special advocate may no longer communicate with the person directly affected by it, except with the authorization of the judge. In our opinion, that process undermines the very essence of the duty of representation.

Finally, as laid out in subclause 85.1(3), the relationship between the special advocate and the named person is not that of a solicitor and client which we, as legal counsel, find extremely surprising. As a result, the special advocate does not seem to be bound by the same ethical obligations as a lawyer and there would be no mechanism for the Barreau du Québec to review anything that had been done by a special advocate. As a professional body whose primary responsibility is to protect the public, the Barreau du Québec is concerned about the protection given to a person subject to a security certificate under the current wording of this bill.

The solution we propose reconciles the demands of national security and the procedural rights guaranteed by the Canadian Charter of Rights and Freedoms. In that context, it is necessary to ensure that the evidence that is required is of adequate quality before an order is made regarding indefinite detention or deportation of the named person.

Many questions the current system as regards the content of the “evidence”. We are essentially talking about allegations or information provided by intelligence services in a number of other countries. That intelligence or information may not conform to the standards of reliability that our own legal system considers appropriate, in both civil and criminal matters.

In these cases, the evidence involves information whose probative value is determined on the basis of “reasonable grounds to believe”; you may wish to refer to section 33 of the Act. Introducing information into evidence based on that evidentiary standard has serious consequences if the information cannot be verified, because some of it may have been obtained from a variety of sources, some of which are reliable and others not, not to mention the fact, as others pointed out earlier, that some of the information may have been obtained under torture or through other forms of coercion, perhaps less spectacular but no less efficient.

The consequences for individuals directly against whom this evidence is used may include removal to torture or, worse, be fatal. Under the circumstances, it is important that there be a reliable mechanism for assessing information, in order to offset the weaknesses of the evidentiary regime. In order to meet procedural standards, the level of rights protection must be equivalent to that applied in the criminal law—in other words, the right to retain counsel, which is recognized in the Canadian Constitution.

However, this right becomes meaningless if counsel is not able to adequately represent his or her client, which would most certainly be the case if the current structure were to be retained. Accordingly, the use of secret information or intelligence in the security certificate process is inconsistent with such values as justice and fairness.

The solution adopted must provide for a procedure that guarantees appropriate respect for rights in a manner that is equivalent to the process laid out for criminal matters. Furthermore, the process must allow a court of law to terminate proceedings where the evidence is insufficient or unreliable, and where continuing an unfair process would cause further injury and prejudicially affect the integrity of the legal system.

The court must have access to all the evidence to be used and have the power, after hearing the arguments, to determine which evidence will be disclosed, as well as the validity of that evidence, based on the evidentiary principles underlying the criminal law.

As Lord Hoffman said:

The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.

He was referring to similar legislation on another continent.

Having said that, we see this as an excellent opportunity not to allow ourselves to be motivated solely by fear which, although it may be the beginning of wisdom, must not drive the drafting of legislation in a free and democratic society. Section 7 of the Charter, if it means anything, is a clause that guarantees everyone the right to life, liberty and security of the person. If I am not mistaken, people who are not yet Canadian citizens certainly fall within the category of “everyone” and therefore have the right mutatis mutandis to protections which are just as rigourous as those guaranteed Canadian citizens.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

To our witnesses, the way we'll proceed is that we'll start with the official opposition, the Liberal Party, for seven minutes of comments and questions; then go to the Bloc Québecois; then to the NDP; and last of all, to the government, in the first round. Subsequent rounds will only be five minutes.

Mr. Dosanjh is going to go first.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

I have just one question, and perhaps it may be a bit unfair.

We had a presentation this morning from Professor Forcese and Mr. Waldman. I'm not sure if all of you are familiar with their presentation. There are substantial similarities in all of the submissions made. Would you agree that if we essentially followed much of what they said, we would come close to dealing with most issues—not all, but most issues?

[Isabelle Dongier]

Thank you.

The Canadian Bar Association did provide very similar recommendations and criticisms of Bill C-3 in its submission, and our recommendations are similar to those of Mr. Waldman and Mr. Forcese.

[Michael W. Milani]

Sir, from the perspective of the Federation of Law Societies, they are very similar.

[Pierre Poupart]

What the Barreau would like to see, ideally, if the choice made by Parliament does not reflect what it sees as the ideal solution, would be for the lawyer—first of all, it would have to be a lawyer—to actually be counsel for the person named in the security certificate.

Of course, if another choice were to be made, the person called on to defend, as opposed to represent, the interests of the named person, would have to be in a position to do that mutatis mutandis, with the same rigour and commitment in terms of protecting that person's interests. Is it possible to create such a beast? We certainly hope so, if that is the choice made by the Canadian Parliament.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Let me understand that last point. You're saying that if we had a roster of eminent counsel appointed to the panel, appropriately picked in a rigorous fashion, with the participation of the Canadian Bar, and other independent bodies such as yours and the Department of Justice, and if the individual had the right to choose one among them, with the confidentiality guaranteed to the individual on the other side, since there is a lack of solicitor-client privilege, that would come close to what you just said.

[Pierre Poupart]

I don't know whether I'm speaking on behalf of the Barreau du Québec in making the comment I'm about to make, but it seems to me, on a personal level, that we don't have different categories of lawyers in Canada and that, insofar as the right to freely choose one's advocate or representative is a deeply-rooted value in the collective imagination and daily lives of citizens and persons living in Canada, even though they may not be citizens, I am not particularly enthusiastic about the idea of having a sort of council of elders among whom the person would have to choose.

Once again, if the idea of everyone being able to be represented by the advocate of his or her choice were to be rejected, clearly, the greater the need would be to ensure that the people among whom the litigant, whatever his origins or status in Canada, is to choose are of the highest quality, since the stakes are considerable. This is probably the worst mark of disgrace that any human being living in Canada could ever have against him.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Ms. Barnes, did you wish to share the time?

[Sue Barnes, Liberal, London West, ON]

How many minutes are left?

[The Chair, Conservative, Garry Breitkreuz]

About three.

[Sue Barnes, Liberal, London West, ON]

Okay, sure.

For the record, I'd like your opinion, if you care to give it, of whether the bill as it currently stands would pass a constitutional challenge. I will ask each association to respond, if you care to.

[Isabelle Dongier]

Well, according to the CBA review, the bill does not pass the charter's test right now. It definitely needs to be amended, on various accounts.

[Frederica Wilson, Director, Policy and Public Affairs, Federation of Law Societies of Canada]

I don't claim to be an expert in constitutional law, but I think there's a very serious question about whether it would pass. It does not provide the safeguards that the Supreme Court indicated would be required. Under the circumstances, one can assume it would have a rough ride.

[Pierre Poupart]

At the Barreau du Québec, our opinion is that, as currently drafted, this bill is not different enough from its predecessor to be considered constitutionally valid.

[Sue Barnes, Liberal, London West, ON]

So we have a split.

Thank you very much. I am probably out of time.

[The Chair, Conservative, Garry Breitkreuz]

You have another minute and a half.

[Sue Barnes, Liberal, London West, ON]

Good.

Would somebody address the resources you think you would need? It was raised earlier about one special advocate not being able to handle the workload. In your opinion, what physical resources and security-cleared personnel resources would enable a special advocate to do a proper job?