My name is Dominique Peschard and I'm the President of the Ligue des droits et libertés. I will be sharing my 10 minutes with Mr. Philippe Robert De Massy, who is also with the Ligue des droits et libertés.
Mr. Chairman, ladies and gentlemen members of the committee, we are pleased to have the opportunity to appear before the committee on this very important issue. Indeed, in our opinion Bill C-3 raises fundamental human rights issues. On the other hand, it is with a certain distress and true displeasure that we were made aware of the whole consultation process of the committee before the bill is sent to the House for its third reading.
We were pleased to learn that an additional meeting will be held in order to allow Amnesty International, Human Rights Watch and the Canadian Arab Federation to testify. Nevertheless, some of the groups who asked to appear will not be heard by this committee, particularly those groups who are supporting individuals who are presently under a security certificate and groups supporting communities which are particularly targeted by security certificates and concerned with immigration issues and anti-terrorist measures in general. We would ask that you review this decision to ensure that all the groups and organizations who wish to be heard on this matter will have an opportunity to testify before you.
I will now focus on Bill C-3.
Until recently, Canada has always been considered in the world as a leader in the area of human rights. This unfortunately seems to have changed since the turn of the century, more particularly since September 11, 2001. Yet, the Immigration and Refugee Protection Act is one of the only statutes, to our knowledge, to specifically refer not only to the Canadian Charter but also to the international instruments.
Section 3(3) of the Immigration and Refugee Protection Act states:
(3) This Act is to be construed and applied in a manner that [...] (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination [...]; [...] (f) complies with international human rights instruments to which Canada is signatory.
The objective of Bill C-3 is to eliminate from the Immigration and Refugee Protection Act the aspects which were judged unconstitutional by the Supreme Court in the Charkaoui case. Does the bill meet the requirements expressed by the court in an appropriate manner?
Let us recall some unequivocal statements in the decision. Paragraph of the decision, which deals with security certificates, reads as follows:
25. At the same time, it is a context that may have important, indeed chilling, consequences for the detainee. The seriousness of the individual interests at stake forms part of the contextual analysis. As this Court stated in Suresh: "the greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under section 7 of the Charter" (paragraph 118).
In paragraph 27, the court states:
27. The procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of section 7.
The judgment describes the main element incompatible with the Charter as follows:
139. [...] section 78(g) allows for the use of evidence that is never disclosed to the named person without providing adequate measures to compensate for this non-disclosure and the constitutional problems it causes.
The primary innovation of Bill C-3 is the creation of the role of the "special advocate"; the expression "défenseur" used in the French version may be misleading, as it seems to imply that the person playing that role is truly the attorney as a named person. Does Bill C-3 actually offer "meaningful and substantial protection"—as was stated in the Charkaoui decision—compatible with the principles of fundamental justice? In our opinion, the answer to that question is no.
I will now give the reasons why we feel that these objectives have not been met.
The named person and his or her attorney will continue not to have access to the evidence adduced against him or her and will not be in a position to test this evidence in an adversarial proceeding affording a full answer and defence.
The special advocate is not bound by lawyer-client privilege and cannot really represent the named person since he or she cannot communicate with the person without permission from the judge and cannot share the secret evidence presented to the judge.
The cross-examination of the CSIS agents will probably be useless since, according to the testimony of former British special advocate Ian Macdonald before this Committee, the members of secret services usually have no personal knowledge of the facts they put forth as evidence.
A judge can receive as evidence elements which would not be admissible in a criminal trial: hearsay, opinions and so on.
There is nothing in Bill C-3 to prevent the judge from unknowingly receiving evidence or testimony obtained under torture and there is nothing the named person can do to oppose that.
The Ministers issuing the security certificates control the evidence: they are under no obligation to present the entire evidence, more particularly those elements of proof which would exculpate the named person. Yet, we know that CSIS destroys evidence. Recently, Adil Charkaoui, one of the persons under a security certificate, has addressed the courts upon his learning of the destruction by CSIS of the recordings of testimonies of which only written summaries were produced in evidence.