Public Safety Committee on Dec. 5th, 2007

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order. This is the Standing Committee on Public Safety and National Security, meeting number 8, and we are continuing our study of Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act.

We really appreciate our witnesses coming on such very short notice. Some of you have made a great effort to be here. We appreciate it very much and we thank you.

I am not sure if you have discussed who would like to go first. You will go in the same order.

I'll ask you to introduce yourselves. We'll begin with Amnesty International Canada. Then we'll move to the Canadian Arab Federation, and the third presenter will be the Human Rights Watch representative, Ms. Julia Hall.

You each may have 10 minutes approximately. We're not going to bring the gavel down too quickly on you, but make your opening remarks, and then the usual practice at this committee is to go around and give every member an opportunity to make comments and ask questions.

Welcome once again. Please introduce yourselves, and you may begin.

[Alex Neve, Secretary General, Amnesty International Canada]

Thank you, Mr. Chair.

My name is Alex Neve, and I'm the secretary general of Amnesty International Canada. It's a pleasure to be here today. We do certainly appreciate the fact that the committee has opened up this extra opportunity for hearings, making it possible for us to appear.

Amnesty International first spoke out about concerns regarding Canada's immigration security certificate procedure back in 1997, in the case of Manickavasagam Suresh. At the time, we highlighted two separate but certainly interrelated and very serious human rights concerns, and 10 years later both of these issues of fair process and protection from torture remain very substantial and glaring problems.

Amnesty International approaches its review of Bill C-3 from three perspectives. First, does it lead to a process that meets international standards, such that individuals who are subjected to certificates will in fact be dealt with fairly? Second, is it a process that more widely stands to strengthen the protection of human rights in Canadian security laws and procedures? And third, recognizing the importance of the example Canada sets for the rest of the world, is this an approach that demonstrates leadership in the crucial global effort to ensure that human rights are not sacrificed to security?

That latter consideration, we urge, should be of real concern in your deliberations. The past six years, in the aftermath of September 11, have witnessed a global challenge to human rights standards. Crucial safeguards against torture, arbitrary detention, fair trials, and other vital human rights principles have been undermined. We very much need to look to Canada to stand firm for these critical human rights principles and make it clear that true, lasting security will be achieved only through scrupulous regard for these hard-won, universally binding standards.

Amnesty International developed principles that we believe should guide reform of the immigration security certificate process, which derive from Canada's international human rights obligations. It had been our intention to promote these principles in consultations we had expected would be conducted in advance of preparing this bill. Those consultations, unfortunately, never took place.

After outlining those principles, I will then highlight a number of the most problematic human rights shortcomings in Bill C-3's proposed special advocate model, and I will end with Amnesty International's key recommendation, that the special advocate model should be abandoned, and instead, measures should be put in place to make it possible for the individual's own lawyer to provide effective representation.

The overarching principles--there are nine of them--are as follows. I hope you will be able to have these later in writing. On short notice our brief wasn't able to be prepared in both languages, but it is available and is with the clerk, and he tells me it should be distributed to you in short order. In writing, they are elaborated more fully, but I want to signal the key concepts.

First, in no circumstances should any procedure lead to the removal or transfer of any individual from Canada to a country where there's a serious risk he or she would be tortured or subjected to cruel, inhuman, or degrading treatment.

Second, in no circumstances should any procedure lead to the removal of an individual if he or she would consequently escape facing justice for crimes.

Third, criminal proceedings should be launched in Canada when removal or transfer is not possible.

Fourth, immigration removals should not be disguised extraditions.

Fifth, immigration-based security procedures should provide the same rigorous standards of procedural fairness as are offered under Canadian criminal law.

Sixth, the right to full answer and defence must be scrupulously protected in any immigration-based security procedures.

Seventh, in no circumstances should evidence be withheld for the sole reason that to disclose it would be injurious to international relations. The Arar inquiry provides troubling examples of the extent to which concern about injuring international relations is used in a wholly inappropriate manner to justify withholding important evidence.

Eighth, in immigration-based security procedures, detention must be the last resort. Immigration detention should not be prolonged and can never be indefinite.

Finally, ninth, immigration detention is not and should not be treated the same as criminal detention.

The approach that is proposed under Bill C-3, unfortunately, does not meet these principles. In large part, of course, that is because the bill fails to incorporate provisions that deal with many of the very troubling shortcomings that are inherent in the security certificate system, such as deportations to torture, concerns about impunity, and issues related to detention.

The special advocates proposal itself, evidently intended to improve fairness, improves the system only marginally and in the end does little to ensure that fair trial rights are adequately protected.

The proposed amendments creating special advocates mirror closely the model that exists in the United Kingdom. As noted in the Supreme Court decision of Charkaoui, the British model has received significant criticism from U.K. parliamentary committees, U.K. courts, detainees and their advocates, and from special advocates themselves, some of whom have stepped down from their positions rather than continue to give what some have called a veneer of legality to a fundamentally flawed system.

I would like to quickly review some of the more glaring problems with the proposed system. The concerns are elaborated in greater detail in the written notes you will later receive.

First is the concern that special advocates do not have explicit right of access to all relevant information in the government's possession. This is further aggravated by the minister's power to withdraw information from the proceedings. The lack of a clearly expressed obligation on the government to disclose all relevant information has been a grave concern in the U.K., where special advocates have indicated that they have become aware of cases where important exculpatory information was not disclosed to them. If there is potentially exculpatory evidence, the minister must be obliged to disclose it and must not be allowed to withdraw it from the process.

Second, while Bill C-3 permits the appointment of a special advocate on a judicial review or on an appeal from a designated judge's decision, the proposed legislation provides no mechanism for the special advocate, him or herself, to commence a judicial review or an appeal where an issue arises in the context of in camera proceedings.

Third, Bill C-3 does not set out the criteria for the appointment of special advocates. Bill C-3 does not set out minimum qualifications for special advocates or suggest where they will be drawn from, leaving these to the discretion of the minister. The bill makes no provision for training, administrative support, or access to experts for the special advocates.

The U.K. House of Commons Constitutional Affairs Committee has severely criticized the lack of resources for special advocates in the U.K. once they have been appointed. For example, the lack of Arabic-speaking staff has resulted in situations where material that was withheld from the individual concerned was, after the fact, found to be public and available on the Internet and could have been disclosed to the individual to help mount a defence.

Fourth, the relationship between the named individual and the special advocate is fundamentally and inherently flawed. First, the individual plays only a very minimal role in appointing the special advocate, and second, the absence of a solicitor-client relationship undermines the trust necessary between the special advocate and the named individual.

With respect to appointment, it is the judge rather than the named individual who selects the special advocate, chosen from a list of persons established by the Minister of Justice. The judge may also terminate the special advocate. The named individual has only a restricted role in the selection process.

The appointment of the special advocate by a judge with little input from the individual may give the impression that the special advocate is not the advocate of the named individual, and the named individual may perceive the special advocate to actually be acting as an agent of the state.

The role of the special advocate is further undercut by the absence of solicitor-client privilege between the named individual and the special advocate. The proposed legislation is silent on the special advocate's duty of confidentiality and legal professional privilege. This ambiguity will put a chill on communications between the named individual and the special advocate.

The fifth and final concern Amnesty International has with respect to Bill C-3 relates to the restrictions placed on the special advocate's ability to communicate with the named individual or anyone else following the disclosure of secret information to the special advocate. Of course, it is possible for the special advocate to seek the judge's authorization to be allowed to communicate with outsiders, including the named individual. This provision is similar to that found in the U.K. special advocate model, where authorization from the judge allowing further communications has rarely been given, and is rarely sought because the questions the special advocate seeks to ask must be vetted first by the government.

This prohibition on communication with the named individual after disclosure of the secret evidence has been the subject of strong criticism in the U.K., not only from human rights bodies and the special advocates themselves, but by parliamentarians as well. The same criticisms apply to Bill C-3.

It is uncertain whether the special advocate can call witnesses to testify on behalf of the named individual. The limitation on the special advocate's ability to present other evidence on behalf of the named person, such as documentary evidence, is less ambiguous. This may be done only with the judge's authorization.

What is the solution? Obviously, there are amendments that could go some distance in meeting the concerns I have identified. It is disappointing that the bill does not include those sorts of enhancements, all of which are clearly apparent from the U.K. experience and on the public record. The question that arises is whether the special advocate model can be improved to such an extent that these serious flaws can be remedied. In Amnesty International's view, it cannot.

The improvements that are required, securing the real and perceived independence of special advocates, building a relationship of trust, ensuring confidentiality and privilege, and allowing an ongoing relationship throughout the course of the proceedings, would all, if enacted, essentially replicate the role the individual's own lawyer would and should play. Therefore, recognizing the fundamental importance of the solicitor-client relationship in any fair trial, as well as important rights associated with the choice of one's own counsel, all of which is of even greater importance in proceedings involving secrecy, Amnesty International urges that Bill C-3 be amended to focus instead on making it possible for the individual's own lawyer to effectively represent the person concerned.

This is not an outlandish suggestion. The Canadian justice system has already recognized that the need to mount an effective defence in cases involving sensitive evidence, such as that of a national security nature, requires creative solutions to the issue of disclosure. One such solution that has been used involves security clearing defence counsel and giving them access to the evidence, coupled with a limited undertaking not to disclose aspects of that evidence to their client.

The most obvious precedence for such a model involving national security material can be found in criminal cases such as the recent Air India trial. In the Air India trial, the crown gave defence counsel limited interim disclosure to the relevant CSIS files, with an undertaking of confidentiality not to disclose the evidence to others, including their clients. Recognizing that it would have been too time consuming to then seek a judicial ruling for each document, the parties established their own system of negotiating which documents could in turn be disclosed to the accused.

The use of undertakings in Air India stemmed from earlier precedents dealing with informant privilege, third-party wiretaps, police intelligence records, and privileged documents. Ironically, given the very serious concerns about the nature of the justice system being pursued there, models used by the United States to deal with detainees in Guantanamo Bay present a partial example to consider.

Detainees brought before the flawed military commission process are appointed a military defence counsel to represent them, in addition to a civilian lawyer, both of whom have lawyer-client privilege. The military lawyer is able to see classified evidence but can be forbidden from sharing that information with the detainee and their civilian counsel.

The United States has used criminal law to try individuals for suspected terrorist activity. Ahmed Ressam was convicted of conspiring to blow up Los Angeles International Airport, and his trial was a criminal trial held publicly. On sentencing, Judge John C. Coughenour noted:

We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution.

In sum, the special advocate model should be withdrawn. Instead, Bill C-3 should propose a process for security clearing counsel for the individual named in an immigration security certificate, coupled with limited and necessary undertakings that counsel will not disclose some of the evidence he or she is given access to. As well, it is unfortunate that Bill C-3 does not attempt to deal with the related and very serious human rights concerns that arise in immigration security cases, including prohibiting returns to torture, ensuring individuals do not escape justice, removing injury to international relations as a ground for withholding evidence, and improving the provisions governing detention in immigration security cases.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

We will now move over to the Canadian Arab Federation. Please introduce yourselves and make your presentation.

[Mohamed Boudjenane, Executive Director, Canadian Arab Federation]

Thank you, Mr. Chairman.

My name is Mohamed Boudjenane. I am the executive director for the Canadian Arab Federation, and with me today is James Kafieh, our legal advisor.

Mr. Chairman, I'd like to thank committee members for inviting us here today. I think it is crucial and very important for committee members to hear from the communities most affected by this kind of bill, in particular the Arab and Muslim community of this country. Thank you for inviting us here.

The Canadian Arab Federation is the national voice for one of the two minority communities in Canada that have been most adversely impacted by post-9/11 stereotypes. This legislation not only fails to guard against the effects of those stereotypes, it unintentionally perpetrates them. For every time another Arab is detained under the regime, in the minds of many Canadians it reinforces the social stereotype that all Arabs are terrorists. That is a racist stereotype, of course.

Arabs in Canada are an incredibly diverse community. Contrary to the popular perception, most Arabs in Canada are Christian. Actually, today you have two in front of you. I'm originally from Morocco. I'm an Arab Muslim, and James Kalieh is a Canadian originally from Palestine who is a Christian.

Christian and Muslim Arab alike are peaceful and productive members of our society who embrace our democratic values. They are as concerned about safety and security as anyone else in Canada. Despite these facts, in the social reality of discrimination in the post-9/11 environment, Arabs face prejudice. “Travelling while Arab” is the current touchstone for racial profiling.

Why were all Arabs immediately perceived as terrorists following 9/11, whereas the Scottish/Irish were not following the Oklahoma bombing? The answer lies with the social reality of pre-existing discrimination and stereotypes.

Actually, there is an interesting study that was done in the United States by an Arab scholar who talked about the villain within the pop culture of America through movies, cartoons, and so on, and the Arab and the Muslim are always portrayed as someone you cannot trust and someone who is an outsider.

The reality is that Timothy McVeigh was just like us and the 9/11 hijackers were different from us. As I said, this is a perception promoted by certain stereotypes pre-existing in our society.

Arabs are a community at risk. Arabs in Canada live in a society where stereotypes have been reduced to a simple equation--Arabs equal Muslims and Muslims equal terrorists. This type of legislation, unfortunately, is sending a major message to what we have now within our public discourse. The public discourse mainly refers to our opinion leaders, politicians, our media, and people who have a certain impact on the perception of the public. And since 9/11, of course, the media are using headlines like “barbaric”, “uncivilized”, “non-compliance with our values as Canadians” when whey refer to Arab and Muslim.

The opinion leaders and certain politicians, and I remember Mr. Harper recently, after the so-called 17 alleged terrorists in Toronto...when he stood and said “us against them”. Well, we all know that the majority of those kids who were arrested were all Canadian citizens and were all born here in Canada. This type of message sends a clear signal, it has a strong impact on Joe Schmo on the street, and it has a major impact on the perception.

The stereotype and this piece of legislation also give carte blanche to our security officials and agencies to basically racially profile and harass and discriminate against members of our communities. The Canadian Arab Federation has files of cases of people being detained, questioned at the border, and racially profiled by security officials on a regular basis.

We still have cars from CSIS and the RCMP parked in front of mosques in Toronto, Montreal, and other big cities, spying on people, blackmailing members of the community, and asking them, “If you don't spy on your fellow worshipper, you might not have access to your Canadian citizenship”, or “Maybe the application you have to bring your family here will be delayed”. This is the reality, and we have cases and cases of this type of....

On our campuses and universities, Arab women are being attacked. Muslim women are being harassed, and we all know the big debate now in Quebec around the so-called les accommodements raisonnables, where the description of Arab and Muslim is quite negative.

The other impact, of course, is this big sense of marginalization and of being ostracized as a member of this community. Arab Canadians and Muslims now feel like outsiders. They feel as though they are now the enemy within. This has a clear impact on the way they behave in society. It has a big impact on the way they engage with the civil society. I'll give you a couple of examples.

Recently, the Canadian Labour Congress released a study about the rate of unemployment in Canada among racialized minority groups. Arabs and west Asians have the highest unemployment rate in Canada now, in spite of the fact that it is one of the most educated immigrant populations of this country.

The situation now, where we have many organizations that used to fundraise to help people in the Middle East or in other parts of the world, Africa or South Asia, is limited. Anyone who is now raising funds or trying to put together some initiatives to help this part of the world is considered as someone who may be helping a terrorist organization in the Middle East. This has had a major impact on the way we behave as citizens of this country.

We are not able to organize anymore, to express our voice or our opinions on a regular basis. One of the examples I can give you is that last week an Arab, or actually a Muslim-born Canadian.... He is suing Air Canada with the Canadian Human Rights Commission because he was racially profiled. He was stopped and was blocked from taking a plane. The only reason, he thinks, is either because he is a Muslim or because he was very critical of the Bush administration. He is a cartoonist.

So we are now questioning our own freedom of expression in this country when we've been targeted by this piece of legislation.

Finally, I think this is creating a major impact on other racialized minority groups and immigrants in this country. Yesterday, Statistics Canada released new numbers about the new face of Canada, telling us that now one in five Canadians is born outside.

Canada is a country of immigrants. We need immigrants. We have always been portrayed as a land of opportunity, as a land of diversity, but the reality is that we are creating now, with this piece of legislation, a two-tiered legal system: one for immigrants, and we're telling them, if you come to Canada and we perceive you as a threat, you can be detained indefinitely; and one for Canadian citizens. This is not part of our values as a fair and democratic society.

Our recommendation is straightforward. I'm not going to repeat the main argument. Alex Neve spoke about it, and I'm sure Madame Hall will also talk about that. We think there is no room for this piece of legislation in our society. We think we have enough ammunition within our legal system to go after criminals—and a terrorist is a criminal. We arrested and detained those so-called 17 in Toronto recently without using the security certificate, or even Bill C-36. There is enough ammunition, as I said, in our legal system to make sure criminals are detained, arrested, and punished.

I want to conclude by saying that it's interesting, but at some time we said in Canada that it's important to sacrifice some of our civil liberties and human rights to make sure we are secure and safe in this country. The reality is that we are willing to sacrifice the civil liberties and human rights of a certain group in our society. This is not the type of Canada we choose to stand for.

We come to you as legislators to remind you that you have a duty to make sure that this society remains inclusive, that there is no such piece of legislation that can encourage racial profiling or racism against any group in our society. Thank you very much.

[The Chair, Conservative, Garry Breitkreuz]

Our last presenter is from Human Rights Watch, please.

[Julia Hall, Senior Counsel, Terrorism and Counter-Terrorism Program, Human Rights Watch]

Thank you, Mr. Chairman, and thanks as well to the entire committee for giving Human Rights Watch this opportunity to appear today.

I understand the committee is in the process of considering hearing additional witnesses, and of course we welcome that as well.

I'd like to just say, as a point of beginning, that Human Rights Watch endorses Amnesty International's basic concerns with Bill C-3, but I'd like to take you back a couple of years to Human Rights Watch's first foray into advocacy around security certificates. In an April 2005 report we recommended:

Repeal as a matter of urgency Division 9 (sections 76-87) of the Immigration and Refugee Protection Act (IRPA), providing for the use of security certificates authorizing the government to detain and deport, based on secret evidence presented in ex parte hearings and without procedural guarantees, persons determined to be an imminent danger to Canada’s security, including potentially effecting such transfers to countries where a person would be at risk of torture or ill-treatment.

We also noted at the time that although the IRPA did not expressly provide for indefinite detention without charge or trial of persons subject to a security certificate, the practical effect of the detention regime accompanying certification could result in just that: indefinite detention. If a judge determined that a person would pose a threat to Canada's national security and deportation could not be effected, then indefinite detention was, at that time, a possibility, given the loopholes in the law. Human Rights Watch called for closure of that loophole since indefinite detention without charge or trial is by its very nature arbitrary and in violation of international human rights law.

Many of these concerns were articulated in our amicus brief in the Charkaoui case, the decision from which struck down certain provisions of the IRPA as unconstitutional.

We appear before you today to comment on Bill C-3, the stated purpose of which was to remedy the deficiencies of the IRPA identified by the Supreme Court in Charkaoui. We deeply regret, however, that Bill C-3 does no such thing. In fact, the very same criticisms levelled against the IRPA prior to Charkaoui back in 2005 stand with respect to Bill C-3. The substantive and procedural deficiencies we identified in 2005 cannot be set right simply by adding to the mix a security-cleared third party in the form of a special advocate. Regrettably, under Bill C-3 a person subject to a security certificate still will not have access to the secret evidence upon which he has been labelled a national security threat or to secret evidence used to assess his risk of torture upon return. A person assigned a special advocate will not enjoy the benefits of an attorney-client relationship, making any communications between him and his assigned advocate vulnerable to disclosure. The government is still not expressly directed to disclose all evidence, including exculpatory evidence, in this case to the special advocate, making the claimed utility of such an advocate even more limited.

In the interest of full disclosure, I served as an expert witness before the Special Immigration Appeals Commission in the United Kingdom in the case of Abu Qatada. I was there serving as an expert on returns to the risk of torture and the use of diplomatic assurances, or, what they call in the United Kingdom, memoranda of understanding. I personally witnessed more than once special advocates in that case complaining to the judge in open session that the government had not fully cooperated with disclosure requests that had been lodged months prior, at which point the Chief Justice, Judge Ouseley, would call the session into close to discuss the matter further. It was of great interest to those of us in the audience or serving as experts that the special advocates felt the need in open session to challenge the government's lack of cooperation with respect to disclosure.

Finally, under Bill C-3, indefinite detention without charge or trial remains a real possibility since a judge could in fact rule that a person is a national security threat but recognize correctly at the same time that he could not be deported due to risk of torture on return. You will see in our written comments as well that Human Rights Watch does not believe that diplomatic assurances against torture, that is promises from a receiving government that a person would not be tortured on return, are reliable and thus do not mitigate the risk of torture upon return. A certain sense of déjà vu thus surrounds our reading of Bill C-3.

The deficiencies in the bill also fail to meet criticism from other international quarters, and it should be of note that we do sit here to represent to some extent an international perspective on the bill.

In April 2006, the UN Human Rights Committee expressed concern that some persons subject to security certificates in Canada had been detained for several years without criminal charges, without being adequately informed of the reasons for their detention, with limited judicial review, and called on the Government of Canada to legally determine a maximum length of such detention.

Therein lie, in that one paragraph of concern from the UN Human Rights Committee, all of the concerns we have with Bill C-3. This language is eerily similar to the committee's recommendations to the United States government with respect to detentions at Guantanamo Bay.

In December 2006, the Human Rights Committee called on the U.S. to give detainees access to counsel of their choice and expressed concern that detainees did not have adequate due process due to restrictions on their rights to have access “to all proceedings and evidence”.

The use of secret evidence and the establishment of special advocates has been commented upon by many, as the committee well knows from the documents that have been submitted into evidence, including those from Human Rights Watch. But I'd like to share some words with you from a lecture given by Justice Arthur Chaskalson, president of the International Commission of Jurists and chair of IJC's Eminent Jurists Panel. The lecture was given at Cambridge University in May 2007, and the title was, “The Widening Gyre: Counter-Terrorism, Human Rights and the Rule of Law”.

First, Justice Chaskalson applauds Canada and the Canadian Supreme Court for having struck down those provisions of the IRPA that did not comply with the charter or with international human rights obligations. But he goes on to say:

But the appointment of special counsel for this purpose [of testing secret evidence] is not an all embracing panacea. Persons against whom accusations have been made are told that evidence material to the decision to take action against them may not be disclosed to them. Instead, the government that has taken the action will appoint lawyers with security clearances to represent their interests. The lawyers may see the evidence but may not tell them what it is. They must just do the best that they can in the circumstances without being able to get detailed instructions from the affected persons on the information that has been withheld. I am not sure how an English family with a child detained in some foreign country would feel about such a system; or indeed an English family with a child detained in England.

I must confess to having considerable reservations about the fairness of this process.

In closing, I'd like to say that the special advocate system proposed in Bill C-3 simply does not answer the requirement for transparency that is enshrined in international human rights law with respect to fair trial guarantees. Therefore, it does not, as constituted in Bill C-3, provide a person subject to a security certificate with the proper ability to mount a defence.

It is the position of Human Rights Watch, then, that Bill C-3 and a system for special advocates should categorically be rejected.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

We'll begin our round of questions and comments with the official opposition.

Mr. Dosanjh, are you sharing your time with Ms. Barnes?

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Yes, I am.

First of all, thank you all for being here at such short notice. You are part of the additional witnesses; there are going to be more.

I appreciate all of the concerns and comments all of you have made. Because there is not that much time, I will simply ask one question of Mr. Neve.

You talked about the exculpatory evidence and of the need to place an obligation on the crown to disclose the exculpatory evidence. Obviously, that's very important, but you would agree--and I'm not defending anything here, but my understanding is that the crown prosecutors in the courts every day have that inherent obligation to disclose exculpatory evidence to the accused. There is nothing in this law, on the face of it, that would grant them the right to ignore that convention or that obligation, and the same might be argued of the government itself; that's the crown. But what you're arguing for is an expressed obligation to provide exculpatory evidence. I might not disagree with you, but what do you think of what I just said? Does that not place an inherent obligation on the crown, including on the government, that will make up the information that would be released?

[Alex Neve]

I guess some of the uncertainty arises because the immigration security process is not itself a criminal process. While you're quite right that those obligations around disclosure are clearly established in common law with respect to criminal proceedings, when things transfer into an immigration context—and this isn't the only principle where we see this play out—it is not uncommon that it becomes less clear, less certain, whether those conventions and common law principles will or will not be adhered to. That may well be the intention.

As I noted, I think there is a cautionary reminder from the U.K., which has exactly the same well-established—perhaps even longer-established—conventions with respect to disclosure in criminal processes, where this is not how it has played out, and special advocates have frequently indicated.... It's usually happened because they act in more than one case. They'll see information in some other case they're involved in that has been shared with them, for whatever reason, which they've indicated—if it was disclosed to them in the first case or the other case they were involved in—would have been of some relevance, if not even potentially exculpatory, but wasn't disclosed.

I want to be clear that this doesn't solve the problems with the model for us, but we think it's a very important principle, because regardless of whether a special advocate is the one acting or whether the system did get further improved and gave this power to the individual's own lawyer, that person needs to be able to rely on an assurance of full disclosure.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

Thank you for coming. I respect what you're trying to tell us. Unfortunately, for procedural reason, many of the examples of changes to this legislation, as presented to us, would be outside the scope of our amendment power for a bill coming to us after second reading.

So I am going to talk to you about some of the things I think are within that scope. One of those would be the choice of lawyers. Another would be a prohibition against using evidence from torture. Another one could be a duty of confidentiality, just because the bill specifically says there is no solicitor-client privilege.

I would like to canvass how important you think each one of those would be. I am not saying right now that we are absolutely certain they're within the confines of any amendments we could make, but I can tell you some of the others I've seen are definitely not within the confines of the process. This is not a bill...and I know the procedure for a bill sent to us after first reading is that we can amend it in any way we want. So even though I understand what you and others have been telling us, I'm just telling you that some of those wider amendments are not possible with this particular piece of legislation at this time.

Having said that, I would like to go to the Canadian Arab Federation, because I think the choice of a lawyer in this situation would be a critical thing to have in the bill. Could you expand on that?

[Mohamed Boudjenane]

Absolutely, we agree with you. But again, our position is, do we really need this type of extraordinary legislation?

[Sue Barnes, Liberal, London West, ON]

I understood that.

I'm trying to see if there are things you feel would be very, very important, if we were faced with amendments on what we know will be a confidence bill.

[James Kafieh, Legal Counsel, Canadian Arab Federation]

The three points you've mentioned are all important, but they're not nearly sufficient. One of the fundamental points I would make is that we're talking about, in effect, taking away somebody's liberty and putting them in solitary confinement for years. This is the effect of it.

In our legal system, one of the fundamental points we should always be able to relate to is that if somebody is judged or is being assessed whether they're competent to stand trial, one of the criteria we look at is, are they able to assist their counsel in their own defence? If they are not allowed to have access to the information, if they don't know the specifics of the allegation, they can't even begin to do this.

So through an administrative sleight of hand, we are taking away somebody's liberty, putting them in what is, arguably, the most severe punishment our system can mete out, and doing this to somebody who has not been found guilty in a criminal court of anything but is being held on the basis of suspicion.

With regard to the points you've made, I respect what you're telling us, that you understand there is only so much you can do on this committee. So we would ask that you do what you can on this committee, but the point is that this is really not even beginning to deal with the issue.

[Sue Barnes, Liberal, London West, ON]

I can tell you, if we were in government, this is not a bill that I think we'd present. But we're not in government.

Ms. Hall.

[Julia Hall]

I really would simply endorse the same. It doesn't matter which of the special advocates you would select as your own special advocate. The limitations upon the advocate's ability to actually represent you in an attorney-client relationship and to share evidence with you that may be of crucial importance to your exoneration obtains, no matter what.

On the absence of torture evidence, that's already codified, to some extent, in Canadian law--

[Sue Barnes, Liberal, London West, ON]

And international covenants, to which Canada has acceded.

[Julia Hall]

Right.

In general, I would point the committee to a very recently released--November 27--general comment, only the second in history by the Committee against Torture. The Committee against Torture categorically includes within that prohibition ill treatment, because prison conditions and conditions of detention very often are categorized as ill treatment as opposed to torture. You have the very sensational vision of torture--for example, being strung upside down and being electrocuted. The committee has made a decision that within the definition of torture itself comes those practices that would constitute ill treatment.

What I would say to that is that in general in Canadian law, and in general in anything that this committee passes, there should be a prohibition against evidence extracted under torture or conditions of ill treatment.

That is my response to your query.

[The Chair, Conservative, Garry Breitkreuz]

Thank you. Your time is up.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Ménard.

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

I didn't hear you say anything about the appeal process. Are you satisfied with the appeal process provided for in this bill?

[Alex Neve]

The one concern that Amnesty International has highlighted is the fact that the special advocate himself or herself does not have the ability to launch a judicial review or an appeal. That is, of course, left in the hands of the individual and his or her own lawyer. But the special advocate, being the only one of that group who has access to the in camera proceedings, who knows the full extent of what is or is not going on and thus would have some very different perspectives and insights as to when a judicial review or an appeal may be necessary, does not have the power to launch the judicial review or appeal and can't even have a conversation with the individual or the individual's counsel to suggest that a judicial review or an appeal may be necessary for particular reasons.

So we do think there are some shortcomings there.

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

If that's all you mention about the appeal, I conclude that you are pleased with the fact that it's the person who accepts the certificate and thus who maintains the incarceration of a person who decides on his or her own what ground of appeal will be recorded, as well as the fact that that appeal will be limited to questions of general importance. Am I right?

Do you believe that person will be treated better than a person convicted of second degree murder whose sentence might only be 10 years? That person could appeal on a question of rights and facts before a bench of three other persons to decide a question as important as a 10-year incarceration.

[Alex Neve]

No, certainly not. We would share concerns with respect to all of those points.