Indefinite detention and not nearly special enough advocates: Liveblogging the Senate hearings on the security certificate process

1:24:58 PM
Well, this is unfortunate. I forgot the Senate chamber doesn’t sit on Mondays, which means this committee won’t be forced to adjourn at 2pm, which means that I may very well not make it out of here in time to catch the daily floorshow in the other place. I don’t think I’ve missed a QP in years. I mean, sometimes I’ll work through it, but I always have at least one ear tuned in. (It also means I’m missing lunch.)

So where am I? I’m at the Senate Special Committee on Anti-Terrorism, which is kicking off its hearings on the security certificate system, particularly in the context of the new provisions for special advocates (which were required after the Supreme Court ruled that the previous system was unconstitutional). We’re hearing from two law professors, Hamish – an American – and Craig Forcese. They’ve already started talking, so I’ll shut up now and pay attention.

1:30:57 PM
Stewart is up first, and he confesses that when he first saw a security certificate proceeding take place, he was taken aback by the hybrid between immigration law and criminal law, since the process shares many characteristics with the latter. As an academic, he says that he still isn’t sure whether there is an actual need for the security certificate regime, since these matters could likely be handled through the criminal justice system.

Proceeding that way, he says, would have a number of advantages: mainly, the defendent would have access to the same tools as any other person facing criminal charges and, perhaps more fundamentally, at the end of the process, we would know whether they were guilty or innocent. At least, a decision to that end would have been rendered.

1:34:20 PM
Secret information, which is the stuff security certificates are made of, tends to have more weight, Stewart says, as far as public perceptions are concerned. What we don’t know, we tend to think, must be more persuasive than conventional evidence. Under the former scheme (the one the court nixed), the procedure for determining the reasonableness of the certificate was so unfair that it was “constitutionally deficient,” he recalls. The right of the accused to know the evidence – or even the charges – against them wasn’t respected.

Bill C-3, then, was designed to address that by putting in place a requirement for special advocates, who would receive all of the information put before the judge, but only subject to the judge’s discretion. He says there will undoubtedly be a constitutional challenge to those constraints, which should make for a fascinating case. (Note: That bit was my speculation, not Stewart’s, although I suspect he agrees.)

One final point about the special advocate: even if it “scrapes by” the court’s demands for procedural fairness, he doesn’t see why Parliament didn’t set a more “robust” regime; legislators aren’t just supposed to meet the bare minimum, required by the court, after all. Although that tends to be the goal for governments.

There were two aspects of the scheme – he keeps calling it that, the “security certificate scheme” – that bothered him, but weren’t addressed in C-2: indefinite detention (there is no limit in the statute), which is “extremely troubling”; and how the Act, as it now stands, permits a person to be deported to face torture or other cruel and inhumane treatment in another country.

It’s interesting coming here right after Khadr. It seems that the dearth of due process is an issue not only within the US military tribunal system, but also here at home. Which makes me wonder: Are juveniles eligible for security certificate detention/deportation as well?

1:44:46 PM
Craig Forcese – pronounced with a rolling, Italian lilt – notes that he devoted considerable time to attempting to educate parliamentarians during hearings on C-2. (ITQ devotees with sharp memories will note that, according to the witnesses at Khadr this morning, he is also an expert in how the Canadian legal system operates within the sometimes ephemeral world of anti-terrorism law.). He, too, points to the contradiction that would allow for a system of indefinite detention of foreign nationals. He doesn’t think the Supreme Court would allow deportation to torture, but that doesn’t mean people couldn’t be held for years on security certificates. The closest analogy for a citizen, he notes, is a peace bond without criminal conviction. It doesn’t allow for incarceration but could bring down stringent legal requirements for supervision and that sort of thing. He sees the potential for a legal challenge on the grounds that the system is far more punitive towards foreign nationals than Canadian citizens. This, he notes, happened in a slightly different context in the United Kingdom, but “we are walking down the same path, albeit in slow motion.” Like Stewart, he thinks there should be a point at which everything shifts to the Criminal Code – a game-changer, as it were.

1:52:41 PM
Finally, Forcese also criticizes the special advocate provision, which, in theory, would mean that the advocate in question could be prevented from communicating with anyone on any evidence provided by the judge, even publicly-available information. This, he says, has left these special advocates “flummoxed.”

1:54:25 PM
First up: the speaker of the Senate? Wow, the Conservatives really are hard up for warm bodies to send to committees; not that there’s anything wrong with Senator Noel Kinsella. But usually, speakers don’t do committees. He asks if there are any alternative mechanisms for dealing with foreign nationals and wonders over the balance between rights and security. So much turns on the nature of a free and democratic society: can the witnesses, he wonders, speak on that? Wow, that’s a pretty sweeping “that,” but Forcese gives it a shot. He says that, of the countries that have developed full blown special advocacy systems, there is Canada; New Zealand, which was “a bit of a disaster”; and the United States, although he acknowledges that the tribunal process at Guantanamo isn’t quite the same. Really, he says, when he has spoken with officials in other countries on the special advocate system, most of them would tell him that they were counting on Canada coming out with the “Cadillac” of regimes, which they could then use to persuade their respective govenments to follow suit, but which we entirely failed to do.

Stewart makes the observation that as yet, no one seems to be arguing that we are in a state of national emergency at the present time, which puts the angst over balancing rights and security in a slightly different context. He thinks the government would have a better case for maintaining the current system – despite constitutional questionability – and defend it in court if the amended process was more robust.

Kinsella brings up the post-9/11 world – and seems to agree that the public does not sense the same level of threat today. Even when there are severe threats against the security of the nation – ought the law not reflect reality? Perhaps this scheme, he suggests, is responding to a threat that is “not the reality.”
Stewart sounds genuinely surprised to say that, for the most part, he agrees with the senator. Wait, is Kinsella sure he’s a Conservative? He sounds suspiciously offside with the legislation brought in by the Harper government and, I should point out, supported by the Liberals (if I’m remembering correctly).

2:05:45 PM
Senator Joyal – who we last saw doing everything but drafting the lawsuit himself to persuade the provinces to take Ottawa to court over the current PM’s sullen refusal to fill the growing number of vacant Senate seats – is being all legalistic again. He brings up the Oake test; which is used to determine the legality of security laws, and notes that there are limits that are “not acceptable” in any free society, like, for example, torture.

Joyal then goes off into an incredibly complex, multi-metaclaused question about the Charkaoui decision, and Stewart seems genuinely impressed with how informed Joyal’s musings on the issue are. He agrees the issue of providing “sufficient adversarial rights” will likely go to the courts in future.

Joyal wonders whether it would help to build a “real” defence system, using the existing law. “Possibly,” says Forcese. From the advocates he’s talked to, the system is seen as a “template” which could be strengthened (or, I suppose, weakened, although that seems unlikely) by the federal court.

“We could end up with that Cadillac system I referred to before,” he suggests. The alternative, he says, are lawyers operating all by themselves, in “lowly silos,” not even permitted to talk to each other about their respective cases. “That’s a real concern,” he says. In the UK, it made a huge difference when advocates could compare notes and trade “institutional knowledge.”

This guy – Forcese – is really good. I hope he does show up at the Khadr hearings. I’m pretty sure I can guess what he’d say, but it would still be worth getting it on the record.

He predicts that the special advocates may go straight to court – in pairs, since that’s how they’ll be working – to try to force the government to provide sufficient resources. But that will involve battling the executive, Justice, since the courts won’t likely order the spending of more money.

Joyal notes that Forcese talks about getting a Cadillac, but why not a Bentley? Why not move towards the SIRC model, which seems to be the preferred system. That’s the Security Information Review Council, I think – I’ll check once I’m back in Googlerange. But it involves an independent third party that can monitor the disclosure of information. Of course, Forcese notes, SIRC has had its own problems with CSIS failing to disclose information, but its experience makes it the most relevant model.

Who sits on SIRC at the moment? It’s usually at least a couple of former parliamentarians, if I remember correctly.

2:26:28 PM
The chair – David Smith jokes that, what with Forcese’s Italian heritage, he’s surprised he didn’t call for a Lambroghini rather than a Bentley. “Just as long as it’s not a Lada,” he shoots back.

2:27:49 PM
A female Liberal senator, whose name I just can’t make out from this chair, queries the witnesses about disclosure: what if the special advocates just aren’t able to get all the information that they need? Although Stewart admits there are any number of cases where the Crown fails to disclose information, there are relatively few in which that failure “really mattered.” He’s still of the view that the advocate ought to get all the information, even if not all of it will ultimately go to the detainee, or his or her counsel.

Once again, he notes that this is technically an immigration law, not part of the criminal justice system, which it’s clear he sees as a potentially irreconcilable conflict, given the subject matter.

Forcese, for his part, thinks it’s more likely that material may “go missing” in this context, given the unorthodox quality of some of the evidence – unconfirmed intelligence gathered from foreign agencies, for example – as well as the secrecy that permeates the entire process.

The senator, who doesn’t deserve to be nameless, because she’s making good points, notes that the more information is used in these sorts of trials, the more difficult it will be to conduct covert operations. If we continue on these models, she suggests, it will lead to not being able to use the evidence that security agencies have collected, which will mean less ability to prevent imminent threats.

Nothing would preclude CSIS from collecting the information, Forcese reminds her, unless there is a dramatic increase in certificate proceedings. So far, there doesn’t seem to have been an acceleration, he says. There haven’t been any new cases in the last few years. But is that why, Senator Sensible Liberal Woman Who Deserves A Name wonders. Maybe law enforcement doesn’t want to take it to the next phase if it means risking the disclosure.

It’s also nearly impossibe to police, and may be unworkable. “It’s not something I wanted tested on the back of one of my clients,” he concludes.

Senator Andreychuk! That’s who this is. I got confused because the Q&A  switched sides, from the Liberals to the Conservatives. My apologies to Sensible Conservative Senator Who Now Has A Name.

If you just read the statute, and hadn’t seen any of the cases, Stewart points out, you’d think this was just a short detention, but that’s not how it works out.

2:50:28 PM
Senator Joseph Day wants to know more about “reasonableness”, and the review process, and it comes down to something called “moderate deference” (a phrase that creates a reflexive misstrust, somehow). He is curious about the absence of the right to appeal – which is true in numerous immigration-related processes.

It’s fascinating to watch the interaction between the witnesses; they frequently nod at each other (or at what the other is saying). Very civil. In fact, this whole afternoon has been astonishingly low-key and civil, given the nature of the subject matter.

Meanwhile, Joseph Day continues to worry over the lack of a univeral review mechanism; initial detention, protracted detention and, eventually, deportation, are all treated differently, as there is no *official* link between detention and removal. Forcese thinks there should be a “ratcheting up” as time goes by; after six months of detention, the government has (presumably) had time to put together its case, and should be held to a higher standard.

Forcese says that information used against people tends to be “hearsay piled upon hearsay piled upon hearsay” – a chain of information that bounces around the world, none of which would be admissable in a Canadian court.

3:03:34 PM
In the UK – which, we’ve learned, was the template for Canada as far as the special advocate system – the barristers involved tend to be clannish and closemouthed, he says — not just due to the rules restricting communication between advocates and counsel, but also because of a lack of trust and fears over what the government might do with any information unwittingly disclosed.

Stewart believes that it would of course have been better if the special advocates didn’t have to fight this battle from the outset, but he seems to have a reasonable degree of confidence that the courts will come down on their side.

3:15:18 PM
There is a lot left to be resolved by C-3, Forcese says — don’t rush to get a report out by the end of the year, since many of these issues might be resolved – or untangled – or made even more tangled-ier – by federal court.

He does, however, like the idea of an independent overseer for the independent overseers, as it were – a parliamentary officer who would report regularly on the government’s track record on disclosure. Joyal brings up the possibility that a standing committee could be brought into the process, as far as the context of anti-terrorism law, and wonders whether Parliament will be satisfied if there is no infrastructure for continued oversight. What will happen at the end, he worries, will be for the provisions to revert to common law status, which would then require a crisis, or an outpouring of public concern, for the provisions to be revealed.

Forcese agrees wholeheartedly – this should be a standing committee, he says – this particular one, that is, since it did such a good job in its report on C-2; better, by far, than its quasi-counterpart in the House of Commons.

Does he know this is Senate Appreciation Week here at ITQ? Because that is just the perfect note on which to end this hearing, and this liveblog – which is exactly what both I, and the chair, are about to do.

3:23:35 PM
And – done.