SIRC—Another kind of human rights tribunal: Liveblogging the Senate Special Committee on Anti-terrorism

1:27:05 PM
You’d be shocked by how many people are shocked that I’d rather cover a Senate committe—even a sexy special Senate committee like this one—than sit through Question Period, but honestly, it’s a nice change of pace. Besides, I can always read the blues later, and—I dunno, make my colleagues reenact any truly thrilling exchanges. I’m also not the only reporter here for once—CTV’s Graham Richardson is planted in the front row.

(I’m actually trespassing on staffer turf, which is ironic, given the fact that I had a passel of them ousted from the media table at the InSite hearings last week, but never mind.)

Anyway, we’re here as part of an extensive study into the current anti-terrorism framework, specifically related to immigration law, and any other laws that might apply. Today’s witnesses are from Security Intelligence Review Committee: Susan Pollack, the executive director, and Mary McGrath. And they’re about to start talking, so I’ll shut up now and listen to what they have to say.

1:34:47 PM
The SIRC reps are here, they say, to provide information to the committee on the so-called “SIRC model,” which some experts have proposed as a way to keep tabs on the detention and security certificate process. They also want to clear up a few misunderstandings.

SIRC, Pollack explains, is an oversight body, and deals with a number of areas of interest, including complaints against or related to the Canadian Security Intelligence Service. It also acts as an administrative tribunal, and has full subpoena power. Basically, it’s like a neverending public inquiry, or commission—or a superpowered parliamentary committee that doesn’t get bogged down by politics, and can’t be filibustered to a procedural pulp by a recalcitrant government.

1:41:09 PM
Wow, the Toronto Star is here, too! By Senate committee standards, this is a veritable media circus. I’m glad, though. It really is an important issue—the security certificate system, that is—particularly since it can result in people being deprived of, you know, actual liberty, for months or even years. It’s not just another alphabet soup tribunal.

1:42:44 PM
Interesting: SIRC counsel don’t so much act on behalf of the complainant, whoever that may be, but as advisors to the committee—like lawyers on a public commission, Pollack says.

There are occasions during a hearing when a complainant may ask a question that involves “national security” issues; at that point, she says, CSIS lawyers will object, and the complainant is asked to leave the room. SIRC counsel will carry on with the interrogation in their absence.

1:48:05 PM
Pollack finishes up her explanation of the SIRC model, and opens the floor for questions—or, technically, the chair does that, although he also warns the witnesses that the committee may send some written questions as well.

1:49:04 PM
George Baker notes that certain members of this committee may, in fact, have more institutional memory than the witnesses, as far as the pre-1985 process; he points out that, in the judgment that found certain sections of the Anti-terrorism Act to be unconstitutional, the Supreme Court pointed to the SIRC model. He wants to know other advantages to the SIRC model, compared to the special advocate model, and notes that, for one thing, SIRC counsel can call witnesses, which special advocates cannot.

McGrath—who is herself a SIRC counsel—fields the question, and notes that when she has had access to information in an ongoing case, she can still have contact with the complainant. That’s not the case for a special advocate. “There are times when I just have to speak to them,” she explains—even if it’s just to set a hearing date, or double-check the questions she plans to ask a witness. They also have more resources: staff, researchers, etc.

George Baker muses that those in prison—on whatever charges—have the right to know the evidence against them.

He finds it “rather incredible” that the points that the witnesses have identified as different between the SIRC model and the special advocate system are the very same as those that the Supreme Court, and the British House of Commons have criticized in the existing SA system. He then gets a chuckle from other senators when he refers to the SIRC model—and the Canada Evidence Act—as being more “liberal” than the ATA. Small-L liberal, he notes hastily.

1:58:57 PM

Senator Serge Joyal has a follow-up question on the rules for contact between SA and complainant, which is severely limited once the former has seen evidence or information disclosed by the government. McGrath seems a little confused by his question, which deals with the requirement for authorization of any subsequent contact. Why, he wonders, doesn’t SIRC have such onerous restrictions? “It’s a Bar question,” he twinkles at her.

McGrath gives a few examples of ways that SIRC counsel deal with the secrecy issue, from making suggestions to the complainant, to having the chair himself (or herself) call a particular witness, or request certain evidence be submitted.

She admits that it is very much a matter of personal sensitivity and discretion—she has been working in this area so long that she just knows how to deal with the restrictions. But that doesn’t do much to help the special advocates, Joyal points out, who will come from private practice.

2:09:17 PM
Senator Andreychuk is up, and she wants to be sure she understood the opening statement—SIRC no longer has any role with regard to immigration cases? Is that a new thing? How much crossover is there between security certificates and other immigration-related issues, particularly when it comes to CSIS providing information and advice to the government? There is some overlap, McGrath notes—not so much with security certificates, but related to CSIS providing bad advice, or causing delays in processing applications for residency. The answer is yes, there could be concurrent complaints, but it hasn’t happened yet.

“We aren’t an investigative body,” McGrath reminds the committee. “We’re an administrative tribunal.”

They can make findings of fact, but these aren’t binding.

2:15:25 PM
Huh. Apparently, SIRC won’t pay for counsel for complainants (who are known as “parties”). They have to foot the bill themselves, which means many are unrepresented. I guess that’s why the SIRC counsel are so important—they’re pretty much the de facto playing field-balancers, as far as ensuring something approaching a fair hearing for both sides, not just CSIS.

2:18:00 PM
Hugh Segal is up now, and he wants to know more about the differences between SIRC and the SA process—the SIRC model being “a bit more generous” to the rights of the complainants.

He asks the witnesses for their opinion on whether the SA model is fair to the parties involved, particularly with regard to excluding the complainant from some aspects of the process, and they are—sort of.

“Magna Carta notwithstanding, you’re cool with that?” He asks, just to be sure, and yes, that’s a direct quote. Yes, McGrath says. “It’s as fair as it can be.”

2:26:11 PM
George Baker wants to be sure that, under the SIRC model, the complainant at least has access to a summary of the evidence or testimony ostensibly protected on grounds of national security, and McGrath confirms that this is supposed to be the case, although she admits that it is always an “arm wrestle” to get a version of the documents, or information, that can be disclosed.

The problem, Baker explains, is that in the SA system, the person is (usually) in detention; it’s a setting where there is less access to the particulars than in most of the cases that would come before SIRC.

2:29:36 PM
Once again, Joyal is playing bar examinerÿhe just asked whether the witnesses have their copies of the Charkaoui decision handy. Looking for all the world like sheepish second year law students, they admit that they don’t, so he hands one up the table. He wants to know about the vetting process—of documents, that is—and McGrath points out that it’s “very, very necessary” for CSIS to be careful with the documents that it discloses. She would never want to put this country at risk by releasing sensitive information, she stresses.

2:35:22 PM
The last round goes to Andreychuk, who muses that, really, the two systems—SIRC and the special advocate system—address very different situations. McGrath sort of agrees—complainants who go before SIRC are rarely being held in detention, for instance—but she points out that there can still be “serious consequences”: think of the damage to future livelihood for a person wrongly denied security clearance.

She and Joyal then go at it, law professor style, with the latter brandishing his well-thumbed copy of Charkaoui, and insisting that the fundamental question goes beyond the process.

2:42:59 PM
And that’s it for Team SIRC. Up next: another SIRC counsel and the committee’s main outside legal counsel, but first, a few minutes of recess for the changeover.

2:47:38 PM
And we’re back. (For the record, I’m  hardly missing Question Period at all, although that may be because I’m getting bulletins from my colleagues. The NDP is still on about the dreaded Liberal carbon tax? Really?)

Anyway, the next witness is Gordon Cameron, a partner at Blake, Cassels and Graydon who also works as a Special Advocate, and who believes there are significant changes required so that the system works as the Supreme Court had envisioned in the Charkaoui ruling. He agrees with Craig Forcese that the legislation has to be amended, particularly the downright Kafkaesque ban on intra-advocate communication.

He admits that he’s simply repeating many of the concerns that the committee heard last month from Forcese and Lorne Waldman, at a meeting that was also blogged by ITQ. I’ll throw a link here when I get back to my desk, but we’re roughing it this afternoon and blogging via berry. (Actually via Selley, to be precise. Thanks, Colleague Selley!)

2:56:37 PM
As a former/current SIRC counsel, Cameron notes that he has experience with a regime where he wasn’t subject to stringent prohibitions on communication—and it made a difference.

2:59:46 PM
Senator Baker questions Cameron’s assumption that the total ban on communication between party and advocate was simply a drafting error. Cameron explains that he doesn’t believe all the provisions barring contact are accidental, but just the section that prohibits the SA from talking to anyone after receiving discloseable material. Baker looks sceptical, and the two go through the wording together, as well as the most recent court decision, to try to discern any subtle messages to the committee from the court “since they can’t appear before us,” as Joyal points out.

3:10:46 PM

Hugh Segal just can’t figure out why Cameron—and other witnesses that have appeared before the committee on this system—are so “troubled” by the special advocate system. He insists that his goal is to fix it, not condemn it. He wants it to work, and he wants to be able to work within an improved system.

Segal and Cameron take a brief trip down civil-liberties-infringing memory lane—right off FLQ Crisis Blvd., as the senator muses over the importance of human rights and the presumption of innocence.

Both men seem somewhat disapproving of the way the situation was handled by then-Prime Minister Trudeau, and Segal wonders whether there isn’t a point at which “we just give up on that principle,” and decide that the threat to national security is simply too great to worry about that stuff.

Not surprisingly, Cameron’s response is a measured and lawyerly version of “Hell, no.” Once again, he calls for the existing act to be “corrected” but notes that there is a case before the court that may override this committee’s hearings.

3:17:08 PM
More on balancing rights from Senator Andreychuk—they’ve been struggling since 2001, and will likely continue to struggle. She wouldn’t want to be the subject of one of these certificates, she admits, but she’d not want to be the government either.

3:18:57 PM
Okay, this is highly irregular, but it turns out that I have to cut this liveblog short. There is a late-breaking development at Public Safety that requires me to head over to West Block—er, nowish. I think I’ve gotten the gist here, and I apologize for the abrupt ending. Oh, and don’t hold this against the committee. They’re fantastic. Go, Senate!