This comes from the Lawyer's Weekly. Harper seems not to be much interested in human rights when they are those of suspected terrorists, the one exception being the Arar case when he and Day both stood up to the barbarian administration on our southern border. I doubt though that Harper will reform his bill so that a government case could be exposed as has been done by the SIRC as the article notes.
There will be no more Arar inquiries either as the secrecy bound Iacobucci Inquiry shows.
British-style ‘special advocate’ scheme fails to protect liberties, experts urge
By Cristin Schmitz
Ottawa
November 23 2007
The federal government’s proposed new “special advocate” regime falls far short of what legal experts and law societies say is required to protect the rights of non-citizens who are subject to security certificates.
Ian Macdonald, a prominent British QC who resigned as a special advocate in 2004, calling his country’s law “an odious blot on our legal landscape,” said he hopes Canada rethinks its reforms to the Immigration and Refugee Act to the extent that they mirror flaws in the much-criticized special advocate system pioneered by the U.K. in 1998.
“The reason I quit as a special advocate was because I didn’t think that it was conscionable for me to lend, as it were, legitimacy to a system of internment without trial based on reasonable suspicion,” Macdonald told The Lawyers Weekly in a telephone interview from Garden Court North Chambers in Manchester, England.
During seven years as one the U.K.’s first 15 special advocates, Macdonald represented more than 10 foreigners, including a handful who were detained after 9/11, based on secret evidence, on suspicion of links to al-Qaida.
“Obviously when I took appointment in 1998 I felt that the role of the special advocate in certain types of cases was a much fairer procedure than what had previously existed,” said Macdonald, author of the U.K.’s leading immigration law textbook.
“My real objection was that after 9/11 the government decided to have internment of suspected terrorists,... and tacked this on to the jurisdiction of the special immigration appeals commission. As a special advocate[,] I felt that I was in an impossible situation because I knew things when I got the [secret] closed material which I was not in any way able to take instructions on from the man who was being interned. What was impossible about it was there was no way of knowing, and no way of finding out, what the person being interned had to say about this particular allegation against him, and there was no way that he would know what the allegation against him was because it was only in the closed material. And so there was a fundamental unfairness in the procedure, and that’s what the majority of the House of Lords have held in their latest decision, Secretary of State v. MB, [2007] UKHL 46.”
Macdonald warned “it would be a mistake” to adopt the British system “lock, stock and barrel” in light of the law lords’ decision in late October condemning the inability of judges in national security proceedings to order the disclosure of secret information which is necessary to preserve a fair trial.
“As our House of Lords has now recognized[,] there has to be in-built into any legislation of this kind, involving special advocates, a much greater system of fairness in the very fundamental sense of letting the person accused know the substance of the accusation to the extent that that person can” defend him or herself, Macdonald said.
Notwithstanding widespread criticism of the special advocate immigration scheme within Britain, Bill C-3 closely tracks the U.K. model. It diverges substantially from what was recommended to Parliament by the Federation of Law Societies.
Two years ago, the national umbrella group for the country’s 14 legal regulators urged that those who are subject to proceedings where secret evidence is presented should have the right to be represented by a lawyer of their own choice. Their lawyer should be granted access not only to all the material and information submitted to the court, but also to the underlying government files, subject to the government’s right to have the counsel first undergo a security check, the law societies argued.
Failing that, the Federation recommended that such persons be entitled to choose from special security-cleared advocates. The law societies stressed that the special advocate should be given access to the government’s underlying file, as well as scope to discuss the case with the individual’s own counsel throughout the entire proceeding (while at all times ensuring that the secret information is not disclosed to anyone, including to the individual and his or her own counsel).
The federation also emphasized that the government should properly resource special advocates so they can effectively perform their difficult role by retaining experts in national security investigations, translators, or other experts to help review the secret evidence.
The federation’s concerns were echoed by University of Ottawa law professor Craig Forcese and Toronto immigration law specialist Lorne Waldman, who co-authored an in-depth study last August on the use of special advocates in national security proceedings in the U.K. and New Zealand.
“In the early days in the U.K. it was the lonely special advocate, a single barrister usually assisted by a junior, against MI5” (the British intelligence service), Forcese told The Lawyers Weekly. “There was no equality of arms. No balance in terms of resources. So the special advocate was left to fight this phalanx of government lawyers.” In the meantime, however, the U.K. has established a special advocate support office which provides institutional knowledge, a database, and training for special advocates, he said. “We really need that.”
Echoing Macdonald’s concern, Forcese said Bill C-3 should be changed to ensure that the special advocate can maintain contact with the person named in the security certificate, even after the special advocate sees the government’s secret case. Bill C-3 stipulates that after a special advocate sees the secret material, she or he must seek judicial approval before discussing the case with the person named in the security certificate.
Forcese said the same rule in the U.K. has meant in practice that special advocates do not continue to communicate with the named person, since they have only been allowed to do so in writing, after the government vets all the questions.
Forcese and Waldman suggest that concerns about the risk of involuntary disclosure of sensitive information by the special advocate can be allayed by requiring the presence of a third, independent person, such as a member of the Security Intelligence Review Committee (SIRC) or its legal counsel, who are well-versed in such matters.
SIRC is the independent agency which reviews CSIS, including complaints that the intelligence service has improperly denied security clearances. Unlike what is proposed for special advocates in security certificate cases, SIRC counsel have full access to CSIS files (excepting Cabinet confidences) and may communicate with a complainant after they have seen the secret security information.
Forcese said the importance of continuing communication between the special advocate and the named person throughout the proceeding has already been demonstrated in other contexts involving secret CSIS information, when the government’s case has collapsed after SIRC counsel reviewed the CSIS file and then was able to glean key information by speaking with the person in question.
Forcese and Waldman argue C-3’s “minimalist” U.K.-style approach to constitutional rights should be jettisoned in favour of the robust SIRC system which has worked successfully in Canada for more than two decades.
They note that special advocates in the U.K. have complained that their government has withheld relevant, and sometimes exculpatory, information in its possession.
Forcese and Waldman therefore argue for an amendment to Bill C-3 that would impose an express obligation on the government to disclose all relevant information to the court and to the special advocate, while giving the special advocate the right to ask SIRC to thoroughly review the government’s secret files, and then certify that full disclosure has been made.
The pair also urge that Bill C-3 clarify the relationship between the person named in the security certificate and the special advocate.
The proposed law states clearly that there is no solicitor-client relationship; however, Forcese and Waldman recommend the addition of express language affirming that a special advocate nevertheless owes a duty of confidentiality to the named person and therefore cannot be compelled to reveal information disclosed by that person.
Bill C-3 should also be amended to ensure that special advocates are sufficiently independent of government, including an express stipulation that government lawyers are not to be special advocates, they say.
In Britain, independence has not been a live issue in the sense that special advocates have all been senior and experienced barristers who are widely seen to be independent of the government.
Macdonald told The Lawyers Weekly Waldman and Forcese’s recommendations would avoid many of the pitfalls in the U.K. regime. “I think that’s a preferable way to go than the way that seems to have been chosen by the Canadian government,” he remarked.
Showing posts with label special advocates. Show all posts
Showing posts with label special advocates. Show all posts
Monday, November 26, 2007
Friday, October 26, 2007
Special Advocates and Bill C-3
This is from cforcese blog. This is a well-argued critique of the changes to security certificates in Bill C23 including an op-ed piece written with Lorne Waldman in the National Post.
October 25, 2007
Special Advocates and Bill C-3
The Tory government tabled a bill on Monday, October 22 proposing amendments to Canada's immigration "security certificates" (Bill C-3). On top of making other minor adjustments (reflecting changes in practice undertaken anyway in the wake of court rulings), the new bill's core purpose is to create a system of "special advocates" to be deployed in in camera, ex parte portions of the hearings to represent the interest of the affected person. Unfortunately, the government effort seems to draw more inspiration from the UK experience than from Canada's own Security Intelligence Review Committee model. It fails to preclude a repeat of the problems experiences in the UK (leaving avoidance of such problems to the discretion of the judge on a case by case basis). Lorne Waldman and I have questioned the wisdom of this model in a op-ed published on October 25 in the National Post, and reproduced below. Other problems space and complexity prevented being discussed in that piece also exist with the bill.
First, the information disclosure regime in the immigration law will continue to be different from the information disclosure regime under the Canada Evidence Act: in the latter, the court is to balance the national security interest against the fair trial interest. In the immigration law, there is no such statutorily-mandated balancing. (And, incidentally, the bill doesn't create a special advocate system for Canada Evidence Act s.38 proceedings. At least one Federal Court judge has concluded that these persons are constitutionally obligatory in such proceedings).
Second, it would also have been helpful to underscore the inadmissibility of evidence where reasonable grounds exist to believe it was produced via torture or cruel, inhuman or degrading (CID) treatment. The bill does specify that unreliable evidence is excluded, but that reference does not go far enough. Torture evidence is already precluded by s.269.1 of the Criminal Code. CID treatment evidence might also usefully be statutorily proscribed, along with rules on who bears the onus of proof in establishing the conditions in which such evidence was produced. (There have been Federal Court decisions on the latter issue, in relation to torture, but a statutory rules seems sensible).
Third, immigration detentions (of a potentially indefinite length) and removals (to persecution and possibly torture, if the security threat is deemed significant enough) will continue to be done on government suspicions rather than any standard of proof otherwise recongized in the legal system. We acknowledge the need to protect national security. We also appreciate, however, that government suspicions are sometimes -- perhaps often -- misplaced. That is one of the lessons of the Maher Arar inquiry. Unquestionably, if Maher Arar had been a non-citizen, and thus subject to an immigration security certificate, he would have been detained and removed to Syria, without any outing of the deficiencies of the government position.
To this point should be added another observation, anticipating an objection raised in our op-ed: The best special advocate in the world would not have stood in the way of this certainty -- it took a full airing and probing of the information in the government's position. That included access to information the government would rather not have shared. In bill C-3, a special advocate will be hard pressed to persuade a judge to see information the government has chosen not to submit to a judge already. He or she will be reduced to arguing that he or she suspects that there might be further relevant material, but not having access to it, will have difficulty making this case. Notably, the Federal Court has, in the past, fixated on the fact that security certificates are administrative and not criminal proceedings, and have tailored its position on disclosure accordingly. I fear that these judges will rely on this (unpersuasive) distinction in responding to such requests. (Keep in mind that the outcome of security certificate processes may be more serious that anything the criminal code could impose -- indefinite detention without charge and removal to torture). The better model, as we suggest, is that of the Security Intelligence Review Committee, with its full access to security service files. Ironically, if C-3 goes through unamended, special advocates may find it useful to bring collateral challenges in an effort to probe more deeply security service files, by tabling complaints in front of SIRC and calling on that body to conduct proxy investigations. It would be nice if a more elegant system was developed from the very beginning.
For more information on the UK experience and SIRC, see our August 2007 report.
Our op-ed follows (albeit with the dramatic headline selected by the editors):
Canada doesn't need a Star Chamber
Craig Forcese And Lorne Waldman
National Post
Published: Thursday, October 25, 2007
On Monday, the federal government tabled its amendments to Canada's national security immigration law. There were two options in drafting this bill: Ottawa could have learned from the experience of other countries -- most notably the United Kingdom -- and created a system that avoided problems in those jurisdictions. Or it could table a minimalist proposal that risks repeating those problems here in Canada. The government chose option two.
In response to the Supreme Court's Charkaoui decision in February -- the court held that the manner in which secret evidence was used to detain and deport non-nationals using security certificates was unconstitutional -- the new legislation Ottawa proposes will layer special advocates onto a slightly modified security certificate process. These special advocates will be security-cleared lawyers representing the interests of parties excluded from national security-related hearings where the government presents information deemed secret.
The United Kingdom has employed a system of special advocates for almost a decade, one that has been controversial. Until recently, the U.K.'s special advocates lacked a support office creating anything approximating equality of arms between government and special advocate. Other problems persist. Most notably, U.K. special advocates may not continue to communicate (in any meaningful sense) with the affected person they serve after the advocate has reviewed the secret information. Further, special advocates have reported difficulties in obtaining full disclosure of all relevant (and sometimes exculpatory) information the security services have on this person. In July 2007, the U.K. Parliament Joint Committee on Human Rights issued a strongly worded report describing the U.K. special advocate system as "'Kafkaesque' or like the Star Chamber."
Canada's government is proposing legislation that seems bound to create similar problems here. First, the bill specifically authorizes the special advocate to review secret information provided by the government to the judge in the security certificate process. However, it includes no express procedures for the special advocate to reach beyond this information and seek and obtain government records not already disclosed to the court (other than to ask simply the judge to oblige this disclosure).
Second, while the bill does not close the door on continued contact between the special advocate and the interested party subject to the security certificate, nor does it affirmatively guard this right. Instead, this is a matter left to the discretion of the judge.
Third, the bill is silent of the question of resourcing, failing to create a well-equipped special advocate office able to offer the sort of support now (belatedly) enjoyed by U.K. special advocates.
There are better systems, including ones developed in Canada. One such system is the Security Intelligence Review Committee (SIRC) model, employed successfully in Canada for over 20 years. The SIRC model remedies, at least in part, many of the obvious deficiencies in the UK special advocate system that we seemed destined to repeat. It provides for:
Full Access to Information: Under SIRC procedures, SIRC counsel has access to the entire file in the possession of the Canadian Security Intelligence Service (CSIS). As a result, concerns that the security services might either intentionally or inadvertently fail to disclose relevant (and indeed exculpatory) information to counsel are alleviated.
Continued Contact with Affected Person: In addition, under the SIRC model, SIRC counsel can meet with the affected person even after SIRC counsel has reviewed the secret information. Although counsel must take great care not to reveal secret information, experience over many years at SIRC has established that it is possible to have such meetings without risk of inadvertent disclosure.
Canada's minimalist approach is unnecessary. It has proposed a system that could fall far short of the SIRC model, one that will be employed in security certificate cases where the consequences to interested persons (imposed on the basis of suspicions) may include removal to persecution or prolonged detention without trial. It had an alternative. It could simply have grafted the immigration special advocate function onto the existing SIRC system. Indeed, this is, in essence, the approach that existed for permanent residents prior to 2002.
Given SIRC's successful track record, it is very unlikely that a special advocate model less thorough than the SIRC model will survive constitutional scrutiny. The Charkaoui case turned on the court's conclusion that the government had better options in the design of its security certificate system. That conclusion is not fully reflected in the bill presented by the government on Monday. Parliament should now move promptly to add additional precision and detail to the government's sparse effort.
- Craig Forcese teaches national security law at the University of Ottawa. Lorne Waldman is an immigration lawyer in Toronto. They are co-authors of an August, 2007, study on special advocates.
October 25, 2007
Special Advocates and Bill C-3
The Tory government tabled a bill on Monday, October 22 proposing amendments to Canada's immigration "security certificates" (Bill C-3). On top of making other minor adjustments (reflecting changes in practice undertaken anyway in the wake of court rulings), the new bill's core purpose is to create a system of "special advocates" to be deployed in in camera, ex parte portions of the hearings to represent the interest of the affected person. Unfortunately, the government effort seems to draw more inspiration from the UK experience than from Canada's own Security Intelligence Review Committee model. It fails to preclude a repeat of the problems experiences in the UK (leaving avoidance of such problems to the discretion of the judge on a case by case basis). Lorne Waldman and I have questioned the wisdom of this model in a op-ed published on October 25 in the National Post, and reproduced below. Other problems space and complexity prevented being discussed in that piece also exist with the bill.
First, the information disclosure regime in the immigration law will continue to be different from the information disclosure regime under the Canada Evidence Act: in the latter, the court is to balance the national security interest against the fair trial interest. In the immigration law, there is no such statutorily-mandated balancing. (And, incidentally, the bill doesn't create a special advocate system for Canada Evidence Act s.38 proceedings. At least one Federal Court judge has concluded that these persons are constitutionally obligatory in such proceedings).
Second, it would also have been helpful to underscore the inadmissibility of evidence where reasonable grounds exist to believe it was produced via torture or cruel, inhuman or degrading (CID) treatment. The bill does specify that unreliable evidence is excluded, but that reference does not go far enough. Torture evidence is already precluded by s.269.1 of the Criminal Code. CID treatment evidence might also usefully be statutorily proscribed, along with rules on who bears the onus of proof in establishing the conditions in which such evidence was produced. (There have been Federal Court decisions on the latter issue, in relation to torture, but a statutory rules seems sensible).
Third, immigration detentions (of a potentially indefinite length) and removals (to persecution and possibly torture, if the security threat is deemed significant enough) will continue to be done on government suspicions rather than any standard of proof otherwise recongized in the legal system. We acknowledge the need to protect national security. We also appreciate, however, that government suspicions are sometimes -- perhaps often -- misplaced. That is one of the lessons of the Maher Arar inquiry. Unquestionably, if Maher Arar had been a non-citizen, and thus subject to an immigration security certificate, he would have been detained and removed to Syria, without any outing of the deficiencies of the government position.
To this point should be added another observation, anticipating an objection raised in our op-ed: The best special advocate in the world would not have stood in the way of this certainty -- it took a full airing and probing of the information in the government's position. That included access to information the government would rather not have shared. In bill C-3, a special advocate will be hard pressed to persuade a judge to see information the government has chosen not to submit to a judge already. He or she will be reduced to arguing that he or she suspects that there might be further relevant material, but not having access to it, will have difficulty making this case. Notably, the Federal Court has, in the past, fixated on the fact that security certificates are administrative and not criminal proceedings, and have tailored its position on disclosure accordingly. I fear that these judges will rely on this (unpersuasive) distinction in responding to such requests. (Keep in mind that the outcome of security certificate processes may be more serious that anything the criminal code could impose -- indefinite detention without charge and removal to torture). The better model, as we suggest, is that of the Security Intelligence Review Committee, with its full access to security service files. Ironically, if C-3 goes through unamended, special advocates may find it useful to bring collateral challenges in an effort to probe more deeply security service files, by tabling complaints in front of SIRC and calling on that body to conduct proxy investigations. It would be nice if a more elegant system was developed from the very beginning.
For more information on the UK experience and SIRC, see our August 2007 report.
Our op-ed follows (albeit with the dramatic headline selected by the editors):
Canada doesn't need a Star Chamber
Craig Forcese And Lorne Waldman
National Post
Published: Thursday, October 25, 2007
On Monday, the federal government tabled its amendments to Canada's national security immigration law. There were two options in drafting this bill: Ottawa could have learned from the experience of other countries -- most notably the United Kingdom -- and created a system that avoided problems in those jurisdictions. Or it could table a minimalist proposal that risks repeating those problems here in Canada. The government chose option two.
In response to the Supreme Court's Charkaoui decision in February -- the court held that the manner in which secret evidence was used to detain and deport non-nationals using security certificates was unconstitutional -- the new legislation Ottawa proposes will layer special advocates onto a slightly modified security certificate process. These special advocates will be security-cleared lawyers representing the interests of parties excluded from national security-related hearings where the government presents information deemed secret.
The United Kingdom has employed a system of special advocates for almost a decade, one that has been controversial. Until recently, the U.K.'s special advocates lacked a support office creating anything approximating equality of arms between government and special advocate. Other problems persist. Most notably, U.K. special advocates may not continue to communicate (in any meaningful sense) with the affected person they serve after the advocate has reviewed the secret information. Further, special advocates have reported difficulties in obtaining full disclosure of all relevant (and sometimes exculpatory) information the security services have on this person. In July 2007, the U.K. Parliament Joint Committee on Human Rights issued a strongly worded report describing the U.K. special advocate system as "'Kafkaesque' or like the Star Chamber."
Canada's government is proposing legislation that seems bound to create similar problems here. First, the bill specifically authorizes the special advocate to review secret information provided by the government to the judge in the security certificate process. However, it includes no express procedures for the special advocate to reach beyond this information and seek and obtain government records not already disclosed to the court (other than to ask simply the judge to oblige this disclosure).
Second, while the bill does not close the door on continued contact between the special advocate and the interested party subject to the security certificate, nor does it affirmatively guard this right. Instead, this is a matter left to the discretion of the judge.
Third, the bill is silent of the question of resourcing, failing to create a well-equipped special advocate office able to offer the sort of support now (belatedly) enjoyed by U.K. special advocates.
There are better systems, including ones developed in Canada. One such system is the Security Intelligence Review Committee (SIRC) model, employed successfully in Canada for over 20 years. The SIRC model remedies, at least in part, many of the obvious deficiencies in the UK special advocate system that we seemed destined to repeat. It provides for:
Full Access to Information: Under SIRC procedures, SIRC counsel has access to the entire file in the possession of the Canadian Security Intelligence Service (CSIS). As a result, concerns that the security services might either intentionally or inadvertently fail to disclose relevant (and indeed exculpatory) information to counsel are alleviated.
Continued Contact with Affected Person: In addition, under the SIRC model, SIRC counsel can meet with the affected person even after SIRC counsel has reviewed the secret information. Although counsel must take great care not to reveal secret information, experience over many years at SIRC has established that it is possible to have such meetings without risk of inadvertent disclosure.
Canada's minimalist approach is unnecessary. It has proposed a system that could fall far short of the SIRC model, one that will be employed in security certificate cases where the consequences to interested persons (imposed on the basis of suspicions) may include removal to persecution or prolonged detention without trial. It had an alternative. It could simply have grafted the immigration special advocate function onto the existing SIRC system. Indeed, this is, in essence, the approach that existed for permanent residents prior to 2002.
Given SIRC's successful track record, it is very unlikely that a special advocate model less thorough than the SIRC model will survive constitutional scrutiny. The Charkaoui case turned on the court's conclusion that the government had better options in the design of its security certificate system. That conclusion is not fully reflected in the bill presented by the government on Monday. Parliament should now move promptly to add additional precision and detail to the government's sparse effort.
- Craig Forcese teaches national security law at the University of Ottawa. Lorne Waldman is an immigration lawyer in Toronto. They are co-authors of an August, 2007, study on special advocates.
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