The Book

 

 

 

 

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

Subscribe to National Security Law Blog
National Security Law Blog Search

Best Law School/
Law Professor Blog Award

 

Most Recent Blog Postings
Thursday
Dec132007

Minor amendments proposed to Bill C-3 by Commons committee

Cross-referencing: National Security Law (NSL), Ch. 10, p. 414 et seq.

The Commons public safety committee has completed committee hearings on Bill C-3, the amendments to the Immigration and Refugee Protection Act creating a "special advocate" regime in security certificate proceedings.  Four substantive amendments are proposed: creating a species of confidentiality obligation for information obtained by the special advocate during private conversations with the interested party; excluding the prospect of information produced by torture or cruel, inhuman and degrading treatment from being used as evidence in the proceeding; giving some priority to the choice of the interested party in identifying who will serve as the special advocate; and, obliging the government to provide appropriate resources to the special advocate.  See Committee report to the Commons.

These are welcome amendments.  They do not, however, address core preoccupations with the special advocate model.  Without guaranteed continued access by the special advocate to the interested party after the former has seen the secret evidence (albeit, subject to an obligation not to disclose that secret evidence) and an affirmative obligation on the government to disclose all relevant information to at least the judge and special advocate (the actual performance of which obligation can then be verified by the Security Intelligence Review Committee), the Bill C-3 model does not improve on the controverisal UK special advocate system.  It is also categorically worse than the model employed by SIRC in its own adjudication of complaints against the Canadian Security Intelligence Service.

Notably, the latter complaints often concern security clearance denials, and thus involve proceedings that do not trigger the life, liberty and security of the person interests protected by section 7 of the Charter.  If C-3 passes unamended, and subsequent Federal Court practice does not improve on the Bill's deficiencies, Canada will have the following system: 

Those denied security clearances for government jobs are able to challenge those determinations in a proceeding in which a type of special advocate has continued access to the complainant even after the former has seen secret evidence and in which that special advocate is able to piggy-back on SIRC's statutory powers to see all of the information in the possession of CSIS, except cabinet confidences.  (See the CSIS Act, s.39).

Those detained (potentially indefinitely) or alternatively released under extremely strict conditions on their liberty while the government attempts to remove them, even to face the possibility of torture, are entitled to a system in which the special advocate has little or no contact with them once the former has seen the secret evidence and in which the special advocate has no affirmative authority to challenge the scope of government disclosure to the judge and the special advocate and is left simply to raise doubts on this issue without any means of automatically resolving these doubts.

The government has repeatedly asserted that it does disclose all relevant information in its possession, and the Federal Court has crafted caselaw which imposes a good faith obligation to do so.  In this case, then one reasonably expects that codifying this obligation in Bill C-3 should not meet with objections.  It would appear it has, however.

Even accepting the bona fides of the government, 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 line up.  This discrepancy of views has arisen in the United Kingdom.  It is also an observation affirmed by the experiences of the Arar commission: by all accounts, commission counsel (because they were able to compel everything) found material that the government had declined to disclose that was material to the commission's deliberations.  Put another way, there has to be someone empowered to rifle through the government's files who is not also charged with advancing the government's case.  In the context of security certificate proceedings, SIRC is the obvious candidate.

In the final analysis, Federal Court judges may in fact authorize continued (meaningful) access and press the issue of disclosure as fully as would SIRC.  The objections voiced above may, therefore, fall away.  If they do not, this juxtaposition of two systems raise serious questions as to whether the C-3 regime will be sustained over the course of inevitable constitutional challenges.  The Supreme Court may have said that, in relation to the section 1 analysis, the government need not come up with the perfect system.  Confronted, however, with a situation in which those with no constitutional right at stake have a better system than those detained and potentially removed to torture, it is difficult to imagine the Court won't have strong things to say.

Friday
Nov302007

Book released on November 30

National Security Law: Canadian Practice in International Perspective was released on November 30 and is now available from the publisher, Amazon or Chapters/Indigo on-line.

Friday
Nov022007

Special Advocates and the House of Lord's decision in MB

On October 31, 2007, the House of Lords – the UK’s highest court of appeal – released a decision that gave special advocates only a lukewarm blessing.  Secretary of State v. MB, [2007] UKHL 46. That court concluded that preserving the fair hearing interest is imperative and that there may be circumstances in which the use of special advocate does not guard that fair trial interest.  The law lords concluded that the judges adjudicating the case in question must retain the discretion to require that information be disclosed to the named person in the interests of a fair trial. This holding, if applied in Canada, would affect the security certificate process, including the revamped version proposed in bill C-3. At present (and in the new bill), the security certificate process requires a judge to hold confidential information that he or she considers would cause injury to, inter alia, national security if disclosed. Strangely, the disclosure regime under the immigration law is quite different from the more general system for protecting national security confidentiality created by the Canada Evidence Act, s.38.  In the Canada Evidence Act, the judge is able to balance the national security interest against other interests, including the public interest in a fair proceeding.  On both the logic of the Canada Evidence Act and now MB, the security certificate law should not restrict the judge to looking only to the national security question, without conducting a balancing.  This balancing would allow the judge to permit disclosure if the risk to the national security from disclosure is relatively small but the importance of the disclosure of the evidence to the fairness of the proceeding is very high.