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.