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.