I would like to begin my remarks by pointing the committee's attention in the direction of some historical context, namely the long history of problems and mistakes made by security intelligence agencies in this country, whether we're speaking about the RCMP or CSIS. We can look to the findings of the McDonald commission that investigated RCMP activity in the 1970s, the recently concluded Arar inquiry, or the Air India inquiry currently in progress, to note that the Canadian public—all of us—need to be very skeptical with regard to the credibility of undisclosed and untested evidence proffered by intelligence agencies in this country. That context is very important to keep in mind as we review the specific provisions of Bill C-3.
Like my colleague Ms. Dench, I would like to draw the committee's attention to a few provisions in Bill C-3 that perhaps have not received as much attention as others. In particular, there's section 86 of Bill C-3, which speaks about the use of secret evidence outside the context of the security certificate procedure. To quote from our brief—and I would note that these paragraphs from our brief were endorsed completely by the Refugee Lawyers Association in their brief, which you should have before you by now as well—essentially I'd like to draw your attention to the fact that Bill C-3 proposes the continued use of secret evidence, non-disclosed evidence, under section 86 in a wide range of cases.
The Immigration and Refugee Board, which convenes section 86 hearings, is much less able to meet the procedural fairness hurdles set out by the Supreme Court. The Immigration and Refugee Board is a quasi-judicial administrative tribunal, not a court, and while only some of its decision-makers are lawyers, none are judges. Hearings before the IRB are conducted with greater informality and fewer procedural protections than before a court, yet the potential consequences for persons affected include prolonged detention and removal from Canada, to a danger of persecution or torture, and they are the very same as in security certificate cases.
Section 86 is even broader, since it allows the minister to apply for the use of secret evidence during any admissibility hearing, detention review, or appeal before the Immigration Appeal Division. There is no requirement that the persons affected even be alleged to be inadmissible on security or criminality grounds. It is enough that the minister wants to introduce the secret evidence. Keep in mind, then, that secret evidence can be introduced in a section 86 context in a case alleging misrepresentation. It may be alleging some form of criminality, but not necessarily serious criminality. And we may even be talking about inadmissibility on the grounds of health or economic reasons. We're talking about vast powers to introduce secret evidence in the context of section 86. The Immigration and Refugee Board member's decision can be based on this secret evidence if the member considers it reliable, appropriate, and relevant. That's the test.
We would ask if the government believes that if some non-citizen's fundamental rights need to be violated because they represent a threat to security, why is the use of secret evidence not limited to cases in which the persons affected are alleged to represent a genuine threat to security? Indeed, every statement made by the government to date—and certainly in the frequently asked questions available on the government's website—seems to imply that the power to deal with secret evidence is only being used in cases involving people who actually constitute a danger to security, a danger to society, and are heard and ruled on by judges of the Federal Court. That's a false premise, as the Refugee Lawyers Association noted, but it doesn't seem that enough people are aware of this. We're talking about Bill C-3 as proposing the continued use of secret evidence in a much broader range of cases.
CCR would like to emphasize the Supreme Court's ruling in the Charkaoui case in response. Although Charkaoui dealt specifically with the security certificate procedures, the case had much to say about the use of secret evidence in the security context more generally. In that regard, I'd like to quote a couple of small paragraphs from the Charkaoui judgment:
The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of section 7 of the Charter. The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy section 7, meaningful and substantial protection there must be.
Meaningful and substantial are the key benchmarks here.
The court goes on to note:
If section 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found.
A substantial substitute for that information, I would underscore again.
It's the CCR's position that the proposed use of the special advocate model in the context of section 86, as well as in the context of the security certificate procedure, fail miserably in meeting the Supreme Court's benchmarks and, indeed, that Bill C-3 in its entirety is deeply flawed as a result. It is not, as the government has suggested, even minimally compliant with the requirements of section 7 of the charter.
I would be happy to elaborate on this point in discussion.