Challenge of new legislation predicted

Brought into force last month, Bill C-3 - the legislation designed to amend the security certificate process - will likely be the subject of a constitutional challenge, say lawyers.

The bill was created following the February 2007 Supreme Court of Canada ruling in Charkaoui v. Canada (Citizenship and Immigration), which found that the procedure for judicial approval of security certificates (a certificate of inadmissibility leading to the detention of a permanent resident or foreign national deemed to be a threat to national security) infringed the Charter. The court gave the government one year to amend its legislation.

According to the Supreme Court, the person named in the security certificate has no right to see the material on the basis of which the certificate was issued. The judge has to provide the person with a summary of the case against him or her, although this summary could not disclose material that might compromise national security. If the judge determines the certificate is reasonable, there is no appeal and no way to have the decision judicially reviewed.

On the request of either the minister of Citizenship and Immigration or the minister of Public Safety and Emergency Preparedness, the judge is required to hear all or part of the evidence in the absence of the named person and his or her counsel if, in the judge’s opinion, disclosing such evidence would be detrimental to national security or to the safety of any person. Previously, judges were able to receive into evidence, and base decisions on, anything that they believed to be appropriate, even if it would be inadmissible in a court of law.

The new legislation clarifies that “reliable and appropriate” evidence does not include information that is “believed on reasonable grounds to have been obtained as a result of the use of torture within the meaning of s. 269.1 of the Criminal Code, or cruel, inhuman or degrading treatment or punishment within the meaning of the Convention Against Torture.” A new right of appeal has been introduced through the bill, but only if the judge confirms that a serious question of general importance is involved, and states that question.

The bill also allows for the appointment of a “special advocate”’ to the process to protect the rights and interests of the “named person” during the security certificate process. Once appointed, this person will be provided with a copy of all the secret evidence; can challenge its relevance, reliability and weight; will make oral and written submissions with respect to the secret evidence; and may cross-examine witnesses during any part of the proceeding held in the absence of the public, the person, and their counsel.

Recent amendments to the bill clarified that solicitor-client-type communications between the person named in the certificate, their counsel, and the special advocate are privileged and that the special advocate is not a compellable witness.

When the legislation came into force late last month, the minister of Justice established a list of 13 special advocates - all qualified lawyers - after candidates were recommended through an independent process.
Toronto lawyer Lorne Waldman, who appeared before the Senate committee on behalf of the Canadian Bar Association and was also named to the list of special advocates, says it was extremely helpful and important that the government clarified the role of the special advocate and protected the confidentiality of their contact with the named person.

“Otherwise, you’re going to run into the risk where the named person would be reluctant to speak to the special advocate if he wasn’t sure that anything he said was protected by solicitor-client privilege,” he says.
It was unfortunate, he notes, that the government chose to maintain certain aspects of the procedure that he believes “will make the bill more likely to be subject to a constitutional challenge.” These include the issues of the right to full disclosure and to have ongoing contact. “Both of those are available under SIRC and they’re not clearly available under these provisions,” he says.

The CBA was urging the government to further amend the legislation to include disclosure of all relevant information to the court and special advocate, along with an allowance for continued contact between special advocates and the named person after the review of secret evidence, subject to an obligation not to disclose secret evidence.

“There is a high risk, I think, that there will be a constitutional challenge brought forward by some of the people named in the certificates to challenge this new legislation,” he says.

Paul Copeland, who represented Lawyers Rights Watch before the Senate committee and is also on the special advocate list, notes that in a recent conference call with the chief justice of the Federal Court and counsel for the six security certificates cases, the chief justice inquired whether, if Bill C-3 were passed, there would be a constitutional challenge to the new procedures. Counsel for all of those on the security certificates indicated that there would be such a challenge, he says.

In their submission to the Senate committee, Lawyers Rights Watch notes that Bill C-3 does “nothing in regard to the s. 7 issue” raised in the Supreme Court decision.
“In the words of the Supreme Court, the person concerned will still not know the case he has to meet. As such, the s. 7 fundamental justice requirement is violated,” says the submission.

“The question is whether the bare-bones special advocate model amendments in Bill C-3 are such that the government will be able to persuade a court that the limit on the s. 7 fundamental justice right is justified under s. 1 of the Charter. The onus is on the government on that issue,” says the submission.

The CBA is also calling for a parliamentary review of the legislation within a year, as it is not sure how the new legislation is going to work. Given that the bill has been controversial, it is “extremely important for the rule of law that these types of extraordinary procedures are carefully scrutinized,” says Waldman.

The association also requested that special advocates be lawyers with 10 or more years of experience.
“Parliament has made a determination that there are going to be special advocates, and because we believe in the rule of law . . . all of us who are involved in this process are going to try our best to make this system work as best that they can. So that’s the attitude under which we’re operating,” says Waldman.

While some groups have said nothing would make the system fair and there should not be special advocates, Waldman says he thinks this is a debate that will ultimately be decided by the Supreme Court of Canada.

“I think at the end of the day, the court . . . will want to see how any new system works, and I think that’s why it’s important that we make our best effort to make this system work so that if people go back to the Supreme Court and say, ‘Well this system isn’t fair,’ there’s some factual basis upon which to make those arguments, and not just a theoretical position,” he says.

“Now we’re going to have to wait and see how the system plays out in practice, and I think it will be important in six months or a year to sort of look back and see how things have worked out and then evaluate whether the system can be made to work or not,” and whether the addition of the special advocate makes the security certificate a fair process, he says.

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