Mr. Speaker, this is obviously a very important piece of legislation. I want to say at the outset that were we in government in response to the position expressed by the court, we would have definitely presented a different piece of legislation.
This is a piece of legislation that during the committee we have tried to actually improve partly or fully because we believe that the court deadline is very important, and the issue of national and public security is very important for the country. In a way, it is a non-partisan issue. It goes beyond political partisanship.
The fact is that this security certificate regime has been in existence since 1977. The court obviously had the opportunity to review this matter and review it in the context of the Charkaoui case and provide us with its judgment.
The fact is that the government could have chosen any of the three or four models, that the court looked at, without expressing approval for any one of those models.
In fact, one of the models the government could have actually adopted, as I said earlier when I spoke to this matter, was the SIRC model, the Security Intelligence Review Committee model, where there was much fuller disclosure available, where SIRC actually set up an adversarial process, and where SIRC was able to set up essentially a courtroom type procedure to deal with these issues and deal with the security issues prior to the security certificate regime coming into being.
The other particular model that the court referred to was the process under the Canada Evidence Act which handles the balance between the protection of sensitive information and the procedural rights of individuals. The Attorney General of Canada of course has a role with respect to that matter about the potential disclosure of important national security information.
Then in fact the court looked at the Arar case, where the commissioner devised a process to deal with sensitive information in a way that as much disclosure as was possible could be provided to Mr. Arar and/or his counsel.
Finally, the court also examined the special advocate regime that is presently in existence in the United Kingdom. It has been criticized in the United Kingdom. It is a scheme that even if the government wanted to bring this scheme into our legislation, it could have been improved much more than it actually attempted to.
I want to say briefly that our committees, both of the Senate and the House, had made several recommendations to deal with the anti-terrorism legislation. Some of those recommendations were directed to the security certificate regime. Both of the reports of the committees found that there was a need for some form of adversarial challenge to the governmental claims that the secrecy was necessary. Both committees concluded that the affected party be entitled to select a special advocate from a roster of security cleared counsels who would be funded by the government but independent of government.
It should also be noted that both reports also provided several other recommendations for changes to be made to this particular legislation beyond just the issue of how to achieve the correct balance. One of the issues that they had dealt with was the faster process and dealing with the issue of the torture evidence.
When we looked at this legislation and looked at it in light of the fact that there was a court imposed deadline and we needed to proceed expeditiously to deal with the issue, we felt that there were some areas of the legislation we could at least quickly improve upon.
The Liberal members on the select standing committee were able to make four amendments. Let me just go through those amendments. They are very significant because they deal with the rights of the detainee with respect to these matters and enhancing the rights of the detainee.
First, we were able to actually specify in the legislation, through the amendment, that there ought to be specific criteria for the minister when creating the roster of potential special advocates to ensure that they are duly qualified, that they are independent, and that they have adequate resources, which means that they are funded by the government in an adequate fashion but they are independent of the government.
Second, we were able to make an amendment to the effect that the detainee, foreign national or permanent residence, who is the subject of the hearing, be allowed to choose his or her own special advocate from the roster and that advocate in cases would be appointed by the judge.
Third, and in fact very important, there was the absence of the solicitor-client relationship altogether in the legislation, and we were able to reinstate the solicitor-client privilege for the detainee to the extent of the information that the detainee may have given to the special advocate, so the special advocate is barred from sharing that information with anybody else other than the detainee himself. Therefore, that provides a degree of solicitor-client privilege which we believe was appropriate in the circumstances.
Fourth, and most important of all, we were actually able to successfully make a very broad amendment that dealt with the issue of evidence that may be the product of torture, whether it is the primary evidence or derivative evidence. Based on the amendment, if the judge that might be hearing the case believes, on reasonable grounds, that the evidence may be the product of torture, directly or indirectly, that evidence would not admissible in the proceedings before the judge with respect to the particular detainee.
I believe that we have been able to make improvements. Let me just go back and recap, and say that if we were the government, this would not be the piece of legislation. The government could have done a much better job. The government could have actually adopted and built upon the homegrown concept and the process that the SIRC model uses. It did not do that. That would have been much better.
Therefore, we will be monitoring this. We will be attempting to make as many changes or improvements as possible over the next number of months and years, but it is important that the legislation pass. We have a deadline upon us and that is the deadline of February 23. It is important that we show some degree of responsibility, so that the court deadline that has been imposed upon us does not go by. We want to have a system in place before that happens.