Is Bill C-3 the security way to go?

posted on February 09, 2008 | in Category Misc | PermaLink

By Craig Forcese Source: The Globe and Mail (op-ed piece) URL: for subscribers only Date: February 6, 2008 There is a made-in-Canada solution: Follow the SIRC process

Governments make mistakes. Our government made a mistake in telling the United States that Maher Arar was a security threat. Does history repeat itself? Are those individuals subjected to Canada's immigration "security certificates," for example, true security threats, or victims of misplaced suspicions? Only a handful of people can answer this question, because only a handful see the information the government says justifies its concerns. Indeed, even those against whom the certificates have been issued are left to meet an unknown case against them. If they fail to do so, they will be removed from Canada, possibly even to countries that might torture them. If they fight this fate, they are detained or subjected to stringent conditions that may last a lifetime. A year ago, the Supreme Court said this system is unconstitutional in its operation but did not reject the concept as a whole. The fix, for the court, is some approach that gives us more hope that the government's evidence is being carefully probed. Parliament was given a year - until Feb. 23 - to devise this system.And what model has the government proposed in Bill C-3, which is being pushed through the House of Commons? That system is a cut-and-paste job of the "special advocate" model used in the United Kingdom. A "special advocate" is a security-cleared lawyer who has access to the secret evidence and presses government witnesses on behalf of the interested person. These lawyers have prompted government cases to collapse by showing the inadequacies of government suspicions. But their presence does not make for a fair trial. A special advocate can never share the secret information with the interested person. Thus, there will never be a case in which that person can inform a special advocate that the government's chief witness (say, a secret detainee interrogated by an allied intelligence agency) has a personal animus prompting him to fabricate a story. For this reason, issues of credibility - the meat and potatoes of a fair trial - cannot be effectively raised by advocates. Perhaps this limitation on a fair trial may be necessary to protect intelligence sources. Still, Bill C-3 and the U.K. model handcuff the special advocate more than these secrecy concerns require. Indeed, a British parliamentary committee has called the system "Kafkaesque." Two key complaints deserve consideration: First, C-3 calls on the government to put its best foot forward in making its case. It omits any express procedures for the special advocate to reach beyond this information and seek and review government records not already disclosed to the court. Certainly, the Federal Court currently demands that all relevant information be disclosed to the court itself. Yet, what the government considers "relevant" and what a special advocate charged with defending the best interests of the detained person considers "relevant" will not always correspond. This discrepancy of views has arisen in Britain, where the government has sometimes failed to give special advocates relevant (and exculpatory) information. It is also an observation affirmed by the Arar commission experiences: Commission counsel (because they were able to compel everything from the government) found information the government initially had declined to disclose. Second, C-3 does not affirmatively guard the ability of the advocate to meet the interested person once the former has seen the secret information. Instead, this is a matter left to the judge's discretion. In Britain, a similar provision has led to little or no contact, hurting the advocate's effectiveness. There are better systems, including one made in Canada: the Security Intelligence Review Committee process. SIRC adjudicates complaints against the Canadian Security Intelligence Service, including those related to security-clearance recommendations. In doing so, SIRC's counsel has continued access to the complainant even after seeing the secret evidence. Government cases have evaporated on the strength of information that counsel was able to obtain in these interviews. There has never been an accusation that the lawyer's queries revealed a national security secret. Even more critically, counsel is able to piggyback on SIRC's statutory powers to see all of the information in the possession of CSIS, except cabinet confidences. Under these circumstances, concerns that the security service might intentionally or inadvertently fail to disclose relevant information to counsel are less acute. This juxtaposition of the C-3 and SIRC systems raises serious questions as to whether the C-3 regime will survive the inevitable constitutional challenge. The Supreme Court said last year that the government need not come up with the perfect system. Confronted, however, with a situation in which government employees denied a promotion over a rejected security clearance have a better system than those detained and potentially removed to torture, the court may have strong things to say. With luck, C-3's deficiencies will be resolved by the Senate when the bill reaches that chamber, and not left to be fixed in a second round of constitutional litigation. Craig Forcese is author of National Security Law and co-author of a 2007 report on Britain's special advocate system. Credit: Law professor at the University of Ottawa [email]