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.