BACKGROUND

The recourse to in camera, ex parte proceedings (where an affected party must be absent) and the limited disclosure of information and evidence, which are of interest to the Subcommittee, occur in relation to the listing of terrorist entities, the de-registration of registered charities or applicants, the Canada Evidence Act and the security certificate process under the Immigration and Refugee Protection Act. Although the contexts in which this may occur have been briefly set out in earlier chapters of our report, a more detailed description will now be given. This will be followed by a review of the experience in Canada and a formulation of the Subcommittee’s findings and recommendations regarding the provision of legal representation in relation to views adverse to those of the government in proceedings where both disclosure of, and challenges to, information and evidence are limited.

As described earlier in our report, sections 83.05 to 83.07 of the Criminal Code allow the Governor in Council to list an organization or individual as a terrorist entity if there are reasonable grounds to believe that the entity has knowingly carried out a terrorist activity, or is knowingly acting on behalf of a terrorist entity. A listed entity may apply for judicial review of the decision to list. Under the Charities Registration (Security Information) Act, an organization may have its charitable status revoked, or an applicant may be denied such status, if there are reasonable grounds to believe that it has made or will make resources available to a terrorist entity or in support of terrorist activities. The certificate setting out the decision is automatically referred to the Federal Court for review.

On review of both a decision to list a terrorist entity, and to deny or revoke an organization’s charitable status, the following provisions on the disclosure of information, or the ability to be heard, apply:

·        The judge examines in private the information such as security or criminal intelligence reports on which the decision to list or deny/revoke charitable status was based.

·        Any other evidence or information is heard in the absence of the listed entity or its counsel, if the Minister of Public Safety and Emergency Preparedness so requests, and the judge believes that disclosure would injure national security or the safety of any person.

·        The judge is to provide the listed entity with a summary of the information that may not be disclosed, so that it is reasonably informed of the reasons for the decision to list or deny/revoke charitable status.

·        The Minister of Public Safety and Emergency Preparedness may make an application to the judge, in private and in the absence of the entity or organization and its counsel, to withhold information from it. If the judge believes that the information is relevant, but that disclosure would injure national security or the safety of any person, the information shall not be included in the summary of information provided to the entity or organization, but may still be considered by the judge when reviewing the decision to list or deny/revoke charitable status.

Under section 38.06 of the Canada Evidence Act, as set out elsewhere in our report, an application may be brought to authorize the disclosure of information withheld by the government as a result of international relations, national defence or national security. Under section 38.131 of the Act, an application may be brought to vary or cancel an Attorney General’s certificate prohibiting the disclosure of information that was obtained in confidence from a foreign entity, or in relation to a foreign entity, national defence or national security.

During an application under section 38.06 to authorize the disclosure of withheld information, the following provisions on the disclosure of information, or the ability to be heard, apply:

·        The judge determines who is to receive notice of the hearing and who may make representations.

·        The application is confidential and the information relating to it is confidential.

·        The judge may or may not authorize disclosure, depending on whether disclosure would be injurious to international relations, national defence or national security, and whether the public interest in disclosure outweighs the public interest in non-disclosure.

·        The judge may authorize the disclosure (with or without conditions) of all of the information, part of it, a summary, or a written admission of facts.

During review under section 38.131 of an Attorney General certificate prohibiting the disclosure of information, the following provisions on the disclosure of information, or the ability to be heard, apply:

·        The Attorney General must give notice of the certificate to all parties to the proceedings, and any party may apply to vary or cancel it.

·        The parties do not have access to the information unless disclosure is authorized by the judge.

·        The judge is to confirm the certificate (i.e., confidentiality) with respect to all information that he or she determines was obtained in confidence from a foreign entity, or in relation to a foreign entity, national defence or national security.

Under sections 77 to 81 of the Immigration and Refugee Protection Act, as set out earlier in our report, a security certificate may be issued if a permanent resident or a foreign national is found to be inadmissible to Canada on grounds of security, violating human or international rights, serious criminality or organized criminality. The certificate is then referred to the Federal Court for a determination of its reasonableness. The following provisions on the disclosure of information, or the ability to be heard, apply:

·        The judge examines all information and evidence in private, ensuring the confidentiality of the information on which the security certificate is based, and any other evidence the disclosure of which the judge believes would be injurious to national security or the safety of any person.

·        Information or evidence is heard in the absence of the foreign national or permanent resident and his or her counsel, if the Minister of Public Safety and Emergency Preparedness so requests and the judge believes that disclosure would be injurious to national security or the safety of any person.

·        The judge is to provide the foreign national or permanent resident with a summary of the information that may not be disclosed, so that he or she is reasonably informed of the circumstances giving rise to the security certificate.

·        If the judge believes that information or evidence is relevant, but that disclosure would injure national security or the safety of any person, the information shall not be included in the summary of information provided to the foreign national or permanent resident, but the judge may still consider it when reviewing the security certificate.

EXPERIENCE IN CANADA

There are two examples where innovative approaches were taken to address the complex issues that can arise in the national security context where, because of the sensitivity of the information involved, special steps have to be taken to contain the degree of disclosure that can take place and, at certain times, to exclude individuals and their counsel from some parts or all of a hearing.

The Security Intelligence Review Committee (SIRC) has a dual role with respect to the Canadian Security Intelligence Service (CSIS). It conducts reviews of the activities undertaken by CSIS, and it hears complaints with respect to the Service and deals with security clearance denials. It is the complaints hearing process that is of particular interest to the Subcommittee.

For a number of years, SIRC had a panel of security-cleared legal counsel in private practice upon whom it could call for advice and assistance in its complaints hearings. SIRC counsel carried out a number of functions. They participated in pre-hearing conferences with other counsel at which the ground rules were addressed and attempts were made to identify the points of disagreement among the parties.

Portions of the hearings were held in private. The function of SIRC counsel then was to assist the members conducting them and, in the absence of the complainant and their counsel, to cross-examine CSIS witnesses. In carrying out the cross-examination function, SIRC counsel would liaise with counsel for the complainant to ensure that the questions they wanted to ask were pursued. Complainants’ counsel were at a disadvantage in developing their questions because they did not have access to the information and evidence adduced in camera. SIRC counsel performed similar functions during the period when the Review Committee dealt with security certificates.

CSIS counsel would then prepare a summary of the evidence heard at the in camera hearing which was then negotiated with SIRC counsel before it was provided to the complainant and their counsel. This was not always a satisfactory process because the information disclosed was often incomplete and unhelpful.

More recently, Justice O’Connor, who presided over the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, engaged both commission counsel and an amicus curiae. Commission counsel acted in support of the Commission, assessing and presenting evidence, and examining witnesses in both public and in camera hearings. As part of the functions he performed during in camera hearings, he consulted with counsel for Mr. Arar and other intervenors as part of his preparation. The functions performed by the amicus curiae were somewhat different. During in camera hearings, he was mandated to make submissions challenging the national security
confidentiality claims made by government agencies in opposition to the public disclosure of sensitive information. His function was to advocate in favour of accountability and transparency in the public interest.

Justice O’Connor in December, 2006 released his second report, dealing with the policy review element of his mandate, entitled A New Review Mechanism for the RCMP’s National Security Activities. He recommended that an Independent Complaints and National Security Review Agency for the RCMP (ICRA) be established. More specifically, he proposed at recommendation 5(h) that ICRA be given discretion to appoint security-cleared counsel, independent of the RCMP and the government, to test the need for confidentiality in relation to certain information before it and to test the information itself that may not be disclosed to the complainant and the public.  Further, as discussed in the preceding chapter of this report, the Supreme Court of Canada recently concluded that the security certificate process requires additional safeguards in order to be constitutional, and it pointed to the use of special counsel as a solution.   

In general terms, Justice O’Connor sees the functions of independent counsel as being two-fold. Firstly, the person tests the need for confidential information and for the closed hearing in regard to some or all of the evidence. Secondly, independent counsel tests the evidence itself from the perspective of the parties excluded from the closed hearing. Justice O’Connor admits that this is not a complete solution from the perspective of those excluded from a closed hearing. He sees it, however, as a compromise that allows for cross-examination and adversarial argument in what are now ex parte, in camera proceedings.

OUR PROPOSAL

The issues being dealt with in this chapter are difficult, pitting important values against one another, but can be resolved by developing a mechanism that can be made to work.

One of the basic premises of the rule of law and any legal system is the right to confront one’s accusers or those who represent an adverse interest. This is especially important when liberty interests may be affected by being compelled to leave the country, or when financial or charitable activities may be irrevocably damaged. Confronting this premise is the obligation of the state to conserve and protect genuinely sensitive information related to international relations, national defence, and national security.

The balance is not an easy one to strike — the current provisions dealing with the listing of terrorist entities, the de-registration of registered charities, Canada Evidence Act proceedings and immigration law security certificates set out in this chapter do not do so.

A number of briefs considered by the Subcommittee suggest a means of redressing the imbalance where closed hearings and limited disclosure occur. They suggest that a special advocate or amicus curiae scheme be put into place to challenge the evidence adduced in closed hearings and the limited disclosure of information and evidence. Most of these recommendations were made in the context of the security certificate process under the Immigration and Refuge Protection Act, but they can be applied in the other areas dealt with in this chapter as well. Such recommendations were included in the briefs submitted by the Canadian Civil Liberties Association, the Federation of Law Societies of Canada, the Privacy Commissioner, the Canadian Bar Association, B’nai Brith Canada and the British Columbia Civil Liberties Association.

More particularly, the British Columbia Civil Liberties Association recommended in relation to immigration law security certificates that the government establish a regime of security-cleared lawyers to review all secret evidence, advocate the maximum disclosure of evidence to the person affected and the public, oppose the removal of the person named in the certificate, and have access to all relevant information whether it is relied upon by the government or not.

The Subcommittee believes that the imbalance between the state and the individual or entity can be redressed by developing a scheme whereby security-cleared counsel can challenge evidence in closed hearings, and adduce evidence of their own, and advocate on behalf of transparency and accountability in situations where the limited disclosure of information make it difficult, if not impossible, for affected persons to fully defend their interests. The comments by Justice O’Connor described earlier in this chapter capture the Subcommittee’s view, as do the comments of the Supreme Court in its recent decision regarding the security certificate process.

The new scheme should involve the government establishment of a Panel of Special Counsel in consultation with the legal profession and the judiciary. Those appointed to the Panel should be security-cleared members of the Bar with relevant expertise. The Panel members should be provided with the necessary training to carry out the functions assigned to them. As well, the Panel should have the capacity to provide each counsel with the investigative, forensic and other tools they need to carry out the functions assigned to them.

Counsel from the Panel should be assigned at the request of the judge presiding over a hearing, or by a party excluded from in camera, ex parte proceedings. The assigned counsel is to carry out the expected advocacy functions in the public interest, and not as counsel to the party affected by the proceedings. The Subcommittee expects these public interest functions to include arguing for the disclosure of information and testing the reliability, relevance and appropriateness of the evidence presented, bearing in mind the highly sensitive nature of some of it. Acting in the public interest will avoid difficult-to-resolve conflicts between a lawyer’s access to confidential information that may not be disclosed even to a client and the solicitor-client relationship with that person.

RECOMMENDATION 53

The Subcommittee recommends that a Panel of Special Counsel be established by the government in consultation with the legal profession and the judiciary. Counsel appointed to the Panel should be security-cleared and have expertise relevant to issues related to the listing of terrorist entities under the Criminal Code, the de-registration of registered charities and denial of charitable status to applicants under the Charities Registration (Security Information) Act, applications for the disclosure of information under the Canada Evidence Act, and the security certificate process under the Immigration and Refugee Protection Act. The functions of Special Counsel should be to test the need for confidentiality and closed hearings, and to test the evidence not disclosed to a party.

RECOMMENDATION 54

The Subcommittee recommends that counsel from the Panel should be appointed at the request of a judge presiding over a hearing or by a party excluded from an ex parte, in camera proceeding.

RECOMMENDATION 55

The Subcommittee recommends that the Panel should have the capacity to provide counsel appointed to it with the investigative, forensic and other tools they require to effectively carry out the functions assigned to them.

RECOMMENDATION 56

The Subcommittee recommends that counsel appointed to the Panel be provided with the necessary training to allow them to effectively carry out the functions assigned to them.