SECU Committee Report

The Government intends to address the decision of the Supreme Court in Charkaoui, and is currently reviewing how best to meet the principles established by the Supreme Court, with a view to creating legislation to be placed before Parliament as soon as possible. It will take the recommendations of the Subcommittee into account as it studies the possibility of establishing a special advocate role in the security certificate process. The Government will be guided by the need to ensure procedural fairness and to safeguard rights and freedoms under the Charter, consistent with the direction received from the Supreme Court.

There remain a number of challenges and considerations related to whether to introduce a special advocate for all in camera, ex parte proceedings, which involve the limited disclosure of information and evidence. Not all processes engage the Charter rights of individuals as in the Charkaoui case or to the same extent as in that case. Some of these issues have arisen in other litigation, such as the challenge to section 38 of the CEA in R. v. Khawaja, and in other processes such as the Air India Inquiry.

At the present time, the Government believes that further study of the use of special advocates in other processes is required.

Canada’s national security laws and the national security activities of federal government departments and agencies are vital and necessary to safeguarding our personal and collective safety and security. Many activities can and do have implications regarding the privacy of Canadians and the fundamental rights and freedoms guaranteed under the Charter. Safeguarding these fundamental aspects of Canadian life is one reason why effective review is so important. Ensuring that laws and practices remain effective and up to date, while at the same time striking an appropriate balance, requires ongoing vigilance at all levels, up to and including Parliament. The Subcommittee recommended that the Government proceed with legislation to establish a National Security Committee of Parliamentarians responsible for the review of national security matters and that it be called upon to conduct a further comprehensive review of the ATA after a fixed period.

The Government supports the principle that ongoing scrutiny of all of Canada’s laws and practices relating to national security matters is essential, but has yet to determine that a review process based on fixed time periods and the fixed scope of the omnibus package of the ATA is the best way to proceed. To some extent, the ATA as a package can be seen as an artificial construct. It was a legislative package composed of new enactments and amendments to existing legislation based on the security needs of Canada that were identified when it was enacted in 2001. Some national security matters pre-date the 2001 amendments and are not part of the ATA. Other issues did not arise until after 2001 and have been addressed by legislative and other measures adopted since then. For example, changes to Canada’s aviation security laws were made in the Public Safety Act, 2002. The constituent elements of the ATA are part of a larger and still-evolving national security legal framework. The need for a broader and more general review process is demonstrated by the fact that, in conducting the present reviews, Parliamentarians have felt it necessary to include elements of the IRPA and other measures that were outside of the scope of the original 2001 legislative package.

Elements of the ATA enacted or amended more than seventeen individual statutes, which raise other concerns. In many of these, the elements established by the ATA represent only a small part of a much larger picture. The statutes which contain them can be subject to other Parliamentary reviews and will evolve independently. This creates the potential for overlapping reviews and duplication of effort, and increasingly broad and unfocused proceedings, if future reviews are based on the framework of the ATA as opposed to the thematic nature of the subject matter and the issues that arise from time to time.

The Government believes that there is no simple solution to these questions, but that various forms of review are essential to ensure that Canada’s national security laws and practices safeguard both security and civil liberties. For example, the review of specific statutes or provisions is routinely undertaken by the Government and Parliament in the normal course of making sure that Canada’s laws are kept up-to-date and responsive to the needs of Canadians. The Government generally believes that such reviews should be conducted when they are needed, as opposed to having a pre-set timetable. Some specific elements may require attention sooner, and others later, and the overall national security legal framework is broad enough that it may not be practicable or desirable to review all of it at the same time in a single process. As well, the review of the practices of the officials and agencies who administer the legislation is a matter for specialized review bodies accountable to Parliament and the Government is presently considering other recommendations in respect of some of these mechanisms.

The Government will propose an approach to national security review that will meet the basic objectives set out in the second report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar and is considering options for an enhanced role for Parliamentarians as a key part of these proposals for an improved national security review framework.

The Government believes that the initial comprehensive review of the ATA five years after its enactment has been a positive and useful exercise. Parliamentarians have an important role to play in ensuring that Canada’s statutes are kept up to date and effective and that the work of government departments and agencies is carried out in the best manner possible to meet the needs and expectations of Canadians. The Government is committed to strong and clear accountability as well as maximum transparency.

The Subcommittee also recommended a number of technical and drafting changes throughout the ATA. The use of language and specific constructions in Canadian statutes is a technical matter and the Government is concerned that changes to terminology or structure in one provision could have the unintended consequence of affecting the judicial interpretation of others. For example, changes to the structure of the definition of “terrorism offence” might have an effect on interpretation of the definition of “criminal organization offence”, which has a parallel structure. In some cases, provisions which implement international legal obligations may depart from Canadian drafting practice in order to incorporate language or structure which reflects the international legal instruments concerned, thereby ensuring that Canada will be seen to be in conformity with those instruments. The Government has referred to the legislative drafters the recommendations which suggest drafting changes, technical changes or specific formulations and their advice will be reflected in any future amendments to the legislation.