Public Safety Committee on Nov. 29th, 2007

[Isabelle Dongier]

I have never done it myself, but what I hear from others is that those instances involve a huge amount of documentation that you have to review, and it is apparently impossible for only one human to handle it.

So as was discussed this morning by Messrs. Waldman and Forcese, if you are the only individual allowed to look at that evidence, and you cannot share it with anyone, it's an absolutely impossible task to ask of only one person. So definitely, the idea of having a couple of lawyers assigned to a case so they can both be security cleared and both allowed to review the evidence is one thing. And there is definitely a need for some minimal secretarial support for the handling of the documentation and paperwork.

[A voice]

You need a physical space.

[Isabelle Dongier]

Yes, you need physical space so you are able to sit somewhere and get organized and do a proper review of the documentation. There is also the ability to meet with witnesses or potential witnesses.

There are a number of needs that you cannot ask an individual to just volunteer from his own abilities. So it's mainly logistical support, administrative support, and another legal head with whom to share the review of the documentation. Research is also needed.

[Sue Barnes, Liberal, London West, ON]

Would you consider security-cleared experts in different fields a support that's necessary?

[Isabelle Dongier]

Well, yes, most of the time, I believe, but it may depend on the case. Of course, if you don't have any background or educational support for the specific case, you'll have a lot more work to accomplish before you become efficient.

[The Chair, Conservative, Garry Breitkreuz]

Monsieur Ménard, you may begin your round.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Before I begin questioning the witnesses, Mr. Chairman, I just want to mention that I am a member of the Barreau du Québec, which I had the honour of leading, as President of the Bar, in 1986-1987. I can tell you that the Barreau du Québec has selected 14 lawyers who, to my knowledge, are among the most competent legal counsel out there, for the purposes of preparing its report. And it has selected one of the best among them to represent them, Mr. Pierre Poupart. I knew him very well while in practice, to the point where, when people come to me asking for advice, and thinking that I could be of help to them, I always refer them to Mr. Poupart.

To begin with, I would like to ask a series of brief questions, but just note that although this is only our second official meeting, in all the meetings we have had, pretty well the same flaws have been identified, and most of the time, the same solutions have been suggested.

Since we only have six minutes, my questions will be quite specific.

I noted the difference between the Canadian Bar Association and the other witnesses with respect to the lack of client-solicitor privilege for the special advocate.

You said:

He should not be compelled to divulge any information he gets.

I believe that the client-solicitor relationship goes further. That relationship means that counsel has an obligation not to disclose.

Do you agree with others that the special advocate should have such an obligation?

[Isabelle Dongier]

Yes, absolutely.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you.

Mr. Waldman and Mr. Forcese suggested the following solution this morning. If the government considers it to be extremely important or potentially dangerous that the special advocate could, having seen the secret evidence against the named person, inadvertently pass on information to him or her that he is not entitled to provide, the special advocate could, based on our proposal, be joined by a representative of the Canadian Security Intelligence Service for the purposes of a meeting with the named person, although the latter would also be bound by a type of professional privilege. Of course, he may not necessarily be a professional.

What do you think of that solution?

[Isabelle Dongier]

We think it would be an acceptable solution. To a certain extent, it would ensure, if need be, that the special advocate will not disclose information that is still protected.

Having said that, one of the things that has been pointed to in a number of previous studies is the fact that special advocates have never disclosed evidence that they were not supposed to disclose. I think we have to trust individuals who are highly competent and dedicated professionals. I don't think it is absolutely necessary to have a watchdog sitting next to them, to ensure that they won't say too much.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

[Inaudible--Editor] talk.

[Michael W. Milani]

Sir, if I may answer, the Federation of Law Societies of Canada does not believe that would provide a solution, for three reasons.

One is that, as my colleague has said, if the panel of lawyers is selected carefully, that concern should be minimized.

Secondly, there is the history of there never having been a concern under the models that have been in place so far.

But third and most importantly, the presence of someone else in the room will avoid full and frank disclosure and discussion. And I say, sir, with respect, that is not what we were trying to achieve here. So I, for one, and I speak for the federation, do not think that is a useful solution.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I understand and share your opinion, but I am happy that you have been able to confirm that for other members of the Committee.

I would like to ask another quick question. The French translation of “special advocate” is “défenseur”. Do you feel that is appropriate?

[Isabelle Dongier]

No, that term is completely inappropriate. Of course, the term “défenseur” suggests the act of defending someone. The Bill talks about protecting interests. “Special advocate” is a sui generis expression and it is impossible to know what it means until you read the legislation to determine what the role and powers of such an individual are. So, the translation is absolutely inadequate.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Indeed, the expression is used in other legislation, with respect to enquiries relating to CSIS. The term “special advocate” is used and is translated as “avocat spécial”.

[Isabelle Dongier]

Yes, exactly.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

So, you agree with me that this term would be misleading for Francophones?

[Isabelle Dongier]

Absolutely.

[Pierre Poupart]

In any case, what is absolutely clear at this time, Mr. Ménard, is that the term “défenseur” is, at the very least, misleading as regards the current wording of the Bill. Furthermore, the only thing that is special about that advocate is probably the fact that he does not fit the role traditionally and culturally assigned to a lawyer, as reflected in the Canadian Charter of Rights and Freedoms, where it talks about the right to retain and instruct counsel.

So, we're talking about the right to retain the services of counsel, and not about some special, ethereal being created for the purposes of this legislation, who does not have all the necessary attributes to fully and properly represent an individual described as being a threat to national security.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

There is something that is not addressed.

[The Chair, Conservative, Garry Breitkreuz]

Your time is up. Finish if off quickly.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

All right.

There is something that is not addressed at all in the current legislation, but which seems implicit, and that is that an individual should be able to go and see his lawyer and the latter should be able to communicate with the special advocate, if need be. That would improve the system. But what would the relationship be with the special advocate once he had seen the secret evidence, given that he could decide on his own to go and see counsel for the named person?

Do you see yourself playing such a role? Supposing someone comes to see you… You, Mr. Poupart, for example, and you are in private practice. Someone comes to see you about this and you explain the process; but, because he trusts you, he would like you to come with him.

In such a circumstance, do you see yourself working with the special advocate?

[Pierre Poupart]

This is not a feeling only on the part of Pierre Poupart, barrister. The members of the Barreau du Québec's committee have always been deeply concerned about the role of counsel. Here I am talking about lawyers, as opposed to advocates. We felt that the role would be so completely emasculated that it could involve pretty well anything, except carrying out the usual duties, as we are required to do under our code of ethics.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Ms. Priddy of the NDP, you may go next.

[Penny Priddy, NDP, Surrey North, BC]

Thank you.

I want to begin by thanking each of your associations for sending representations today to share with us your opinions.

To set a bit of context—and I've done this before with each new group of witnesses—the NDP is probably the only party that currently doesn't support the legislation and supports looking at the Criminal Code model, as do at least one or two of the witnesses who spoke this morning, because we think it does undermine certain fundamental values in our system. That having been said, we will work to ensure that whatever happens here certainly does no harm.

There's nothing worse than a hypothetical law case; I understand that. Nevertheless, if a Canadian citizen were to be accused of a terrorist plot to blow up the Toronto subway, let's say, what would the process then be, and what would a potential penalty be?

It doesn't matter who answers. Would the bar association...?