About this Project

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.


For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.


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


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Latest Book: Available from Irwin Law in April 2018.


Trying Omar Khadr in Canada: New report on Canada's Guantanamo Bay detainee

A team of students in the uOttawa Faculty of Law Foreign Policy Practicum has submitted a report to the Standing Senate Committee on Human Rights summarizing the publicly available facts in the Omar Khadr case and contesting recent Canadian government claims that Khadr could not be tried in Canada for his alleged acts.  This report, Repatriation of Omar Khadr to be Tried under Canadian Law: An Overview of the Case Against Omar Khadr and the Prospect of Canadian Criminal Jurisdiction, is linked to this blog.


Omar Khadr is the only Canadian - and indeed the only Western - citizen held by the United States at Guantanamo Bay naval base. He is also one of the first persons against whom criminal proceedings have been brought under the controversial U.S. military commissions system. (Australian David Hicks was technically the first, though he reached a plea bargain agreement and thereby avoided the trial procedure). Omar was captured by U.S. forces in Afghanistan after a fire-fight in which he is said to have participated. He was 15 at the time.

While other U.S. allies have demanded and secured the release of their nationals from Guantanamo, often subsequently conducting their own criminal investigations or proceedings against former detainees, the Government of Canada’s efforts on Khadr’s behalf have been desultory in comparison. In reaction to calls for the repatriation of Omar from human rights and other groups, the government has responded that the U.S. military commission process should take its course. More recently the government has suggested that, if repatriated, Khadr could not be charged for the offences he is said to have committed prior and during the Afghan firefight.

The uOttawa Foreign Policy Practicum report suggests that he could be tried in Canada; that is, in a proceeding before a fair and impartial tribunal applying internationally-accepted fair trial rules and taking proper account of his age at the time of the alleged offences (a consideration that has not as of yet been deemed relevant in the US military commission proceeding).  The report calls on the Canadian government to seek Khadr's repatriation to Canada.


Uncertainty in the Canada Evidence Act

Cross-referencing: National Security Law (NSL), Ch. 10, p. 405 et seq.; p.417 (note 174 and accompanying text).

The Federal Court of Appeal has now issued the second of two decisions stemming from the Canada Evidence Act proceedings at issue in the Khawaja anti-terrorism prosecution.  In the first decision, Canada v. Khawaja, 2007 FCA 342, the Court of Appeal upheld the approach applied by the Federal Court (and described at NSL pages 406-07) in balancing the national security interest in secrecy against the public interest in disclosure (although it quibbled with how this test had been applied to at least some of the actual secret material in question).

In the second decision, Khawaja v. Canada, 2007 FCA 388, the Federal Court of Appeal reviewed Justice Lutfy's conclusions in the court below on the constitutionality of the in camera, ex parte regime created by the Canada Evidence Act in section 38.11.  (See discussion at PIL, Ch. 10, p.410 et seq.) The Federal Court of Appeal concluded that section 7 was not infringed by these procedures, as "the features of subsection 38.11(2) do not fall below the level of fairness required in section 7 of the Charter".  Ibid at para. 31.  (All the concurring opinions came to the same conclusion, along the way raising some surprising doubts about whether section 7 was triggered at all).  The court said little more on this issue. 

In comparison, Justice Lutfy, in the court below, identified as one of the safeguards that rendered s.38.11 compliant with section 7 the authority of the judge to appoint an amicus curiae.  This person could "be provided access to the secret information to read, hear, challenge and respond to the ex parte representations made on behalf of the government" -- in other words, they would act as a sort of proxy for the excluded party.   Khawaja v. Canada, 2007 FC 463 at para. 50.  From this, it follows that use of a "special advocate" (or to make less sweeping my rendition of this case in the book, at least the possibility of such a use) is constitutionally required to meet the section 7 requirement.  (PIL Ch. 10, p.417).

Given the Federal Court of Appeal's silence on this issue -- and its simple endorsement of section 38.11 as it stands -- this extrapolation is no longer sustainable.  It remains to be seen what will happen if (most likely, when) this matter is appealed to the Supreme Court.


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.