NATIONAL SECURITY LAW: Canadian Practice in International Perspective

Denial of Passports on National Security Grounds Unconstitutional

Cross-referencing: National Security Law (NSL), Ch. 3, pp.518 et seq.

In a decision released in March 2008, the Federal Court has held the government's current passport order, authorizing the denial or revocation of a passport on national security grounds, unconstitutional.  This provision was added during the recent litigation over issuance of a passport to one of the Khadr brothers.  In the March decision, Justice Noël held that the provision violate section 6 of the Charter -- the mobility right -- and is not upheld under section 1 as "prescribed by law" and demonstrably justified in a free and democratic society.  (The government actions also violated procedural fairness obligations in administrative law).

The section 6 conclusion is not surprising, given the essential nature of passports for international travel.  Nor is the Court's emphatic (and welcome) conclusion that the exercise of a royal prerogative power (of which the issuance of a passport remains one) is subject to judicial scrutiny.  The Court's section 1 analysis is, however, an interesting departure from the standard Oakes-style test.  Rather, the Court simple considered the provision to fail on the "prescribed by law" pre-requisite to the application of section 1. 

In measuring whether the provision is "prescribed by law", the Court concludes that to be so prescribed, the law must be sufficiently clear.  It turns then to the jurisprudence on unconstitutional vagueness/overbreath (developed in connection with section 7 of the Charter) to assess this clarity.  The reference to passport denials "necessary" on "national security" grounds is inherently ambiguous and lacks the certainty the Court considers necessary to make the measure "prescribed by law".  It is not, therefore, sustainable on section 1 grounds.

This approach to section 1 might have interesting ramifications.  The Canadian statute book -- not least section 38 of the Canada Evidence Act  and the security certificate process under the Immigration and Refugee Protection Act -- invoke "national security" to limit disclosure of information.  If these sections counter a substantive constitutional right, the Court's reasoning suggests that the reference to national security alone will not preserve the sections on section 1 grounds.

In relation to the passport order, the declaration of invalidity was suspended for six months to allow a redrafting.  If the government follows that course rather than an outright appeal, it will have to provide precision as to what it has in mind when it invokes "necessary" to "national security".  The better approach may be to recraft the passport order to add clarity.  To this end, the government might wish to look to the admirable precision of section 4A (and section 8A) of the New Zealand Passports Act:

4A Refusal to issue passport on grounds of national security

(1) The Minister may refuse to issue a New Zealand passport to a person if the Minister believes on reasonable grounds that—

(a) the person is a danger to the security of New Zealand because the person intends to engage in, or facilitate,—

(i) a terrorist act within the meaning of section 5 of the Terrorism Suppression Act 2002; or

(ii) the proliferation of weapons of mass destruction; or

(iii) any unlawful activity designed or likely to cause devastating or serious economic damage to New Zealand, carried out for purposes of commercial or economic gain; and

(b) the danger to the security of New Zealand cannot be effectively averted by other means; and

(c) the refusal to issue a passport will prevent or effectively impede the ability of the person to carry out the intended action.

(2) If the Minister refuses to issue a passport under this section,—

(a) the Minister must notify the person in writing of the refusal, and the reasons for it; and

(b) the person is not entitled to obtain a New Zealand passport during the 12-month period starting with the date of the notice, unless the Minister's decision under this section is revoked by the Minister or by a court.

(3) The Minister may, at any time before the expiry of the 12-month period referred to in subsection (2)(b), apply to a Judge of the High Court for an order to extend for a further period not exceeding 12 months the period during which the person is not entitled to obtain a New Zealand passport.

(4) The Judge must make the order applied for if satisfied that—

(a) the information presented in support of the application is credible, having regard to its source or sources; and

(b) the information reasonably supports a finding that paragraphs (a), (b) and (c) of subsection (1) still apply in relation to the person concerned.

 

Extraterritorial Application of the Charter to Canadian Forces

Cross-referencing: National Security Law (NSL), Ch. 14, pp.541 et seq.; Ch. 2, p.32.

It would appear that the Supreme Court’s decision in Hape is creating substantial confusion concerning the extraterritorial reach of the Charter.  In Amnesty International v. Canada, the Federal Court concluded in March 2008 that the Charter did not reach the conduct of Canadian Forces in Afghanistan in their transfer of Afghan detainees to Afghan authorities.  In construing Hape to arrive at this conclusion, the Court’s reasoning reflects some of the uncertainty in that decision and produces confusion about exactly what Hape stands for. 

Put simply, in Hape, the Supreme Court concluded that the Charter typically does not follow the flag – that is, that it does not generally attach to the extraterritorial conduct of Canadian government actors.  The Court did, however, raise caveats to that conclusion.  Consent of the foreign state to the application of the law is an obvious exception.  But so too is what the Court called “some other basis under international law” (at para. 65).  The difficulty in deciding what those other bases are stems from the Supreme Court’s rather unpersuasive approach to prescriptive and enforcement jurisdiction in international law. 

Put simply, extraterritorial enforcement jurisdiction is impermissible, without consent of the territorial state.  Extraterritorial prescriptive jurisdiction is entirely appropriate, so long as justified on one or more of several recognized grounds.  These latter include, for example, the nationality principle – states can and do legislate what it is their nationals can do internationally.

The Supreme Court acknowledges this distinction (see paras 60 et seq.).  The Court then muddies the issue by implying, however, that the application of the Charter must necessarily engage extraterritorial enforcement jurisdiction.  Hape concerned the issue of search and seizures conducted outside Canada and whether they were subject to the Charter’s section 8 protections.  Because Canada cannot dictate how other states conduct their police investigations, it cannot dictate how Canadian police officers cooperating (while overseas) in these investigations act, including in relation to Charter rights (para. 105).

 

But it can.  There is absolutely no bar on interpreting the Charter as a prescriptive tool that precludes Canadian police officers participating in overseas investigations that violate Charter norms.  Here, Canada would not be applying its norms to foreign actors, just asking its own nationals to abstain from overseas behaviour inconsistent with the Charter.  There is no difference, in other words, between this approach and that the Court invokes as proper in its own hypothetical: a law barring extraterritorial smoking by Canadian citizens.  Nor is there any difference between this approach and, e.g., our Criminal Code provision that bars Canadians abroad engaging in sexual tourism.  There is no issue here of inappropriate extraterritorial enforcement jurisdiction, unless Canadian authorities arrive on foreign streets to physically apprehend offenders.  (Nor, for that matter, are there any serious comity concerns – only if the foreign law demanded that people smoke or engage in sexual tourism would there be a conflict of law giving rise to comity preoccupations.)

It is also notable that the Court did say that “deference [to foreign law and international comity] ends where clear violations of international law and fundamental human rights begin” (at para. 52) and that Canadian officers may not participate “in activities that, though authorized by the laws of another state, would cause Canada to be in violation of its international obligations in respect of human rights” (at para. 90).  It also reaffirmed that “[i]n interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a construction” (at para. 56).

From this discussion, three points may be drawn.  First, Hape suggests that the Charter generally will not apply extraterritorially.  Second, a straightforward reading of prescriptive jurisdiction rules means that the Charter could be construed as requiring Canadian government actors to desist from extraterritorial actions violating Charter norms.  Third, at the very least, they have to desist if in participating, they would violate Canada’s human rights obligations.  So at minimum, the Charter reaches as far as Canada’s international human rights obligations reach.  It follows that if Canada’s international human rights obligations extend extraterritorially, so too does the Charter.

As noted, Hape concerned search and seizures conducted outside Canada and whether they were subject to the Charter’s section 8 protections.  Here, no real questions of compliance with Canada’s human rights obligations were truly engaged.  The section 8 protections against search and seizure are more robust than anything found in the International Covenant on Civil and Political Rights (ICCPR), for example.

The Amnesty International case is entirely different, and rests on section 7: the protection against deprivation of life, liberty and security of the person.  Particularly of note is the right to be free from torture and not removed in circumstances where there are reasonable grounds to believe one will be tortured.  These rights are amply guarded in international treaties of which Canada is a party (the ICCPR, Art. 7 and the UN Torture Convention, Art.3) and at customary international law.

The Amnesty International case should, therefore, hinge on whether these international obligations extend to Canadian soldiers operating in Afghanistan.  As discussed in NSL, Ch. 2, p. 28 and Ch. 14, pp. 542-43, there is sound reason to believe that they do, although the matter is not without some doubt.  The test (at least under the ICCPR) hinges on the degree of control exercised by the state’s forces.  In the words of the UN Human Rights Committee: “a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.”  U.N. Hum. Rts. Comm., General Comment 31, para. 10, U.N. GAOR, 59th Sess., Supp. No. 40, Vol. 1, at 175, 177, U.N. Doc. A/59/40 (2004).

The Federal Court had a very different view of the standards to be applied.  Unfortunately, the Court focused on the Supreme Court’s admittedly murky discussion about whether extraterritorial application of the Charter is a matter of prescriptive jurisdiction or whether it also necessarily involves enforcement jurisdiction.  Since extraterritorial enforcement jurisdiction is impermissible without consent, the Court focuses its inquiry on whether this consent is forthcoming from Afghanistan.  Responding in the negative, the Court then considers whether an exception to this consent rule should be applied because the actor here was the Canadian military (often deployed without consent).  Apparently, the applicants urged that because the military was in a position to assert effective control over persons in their custody (unlike a situation where Canadian police are simply assisting foreign authorities), the Charter should apply.

This is the right test in the wrong place.  As noted above, the effective control test is the measure of whether Canada’s obligations under the ICCPR extend extraterritorially.  The logical sequence should be: Charter applies where international law applies; international law applies where there is effective control.  This approach would eliminate the confusion that ultimately flows from the Court’s reasoning.

In this last respect, the Court casts doubt on whether “effective control” is really an exception to Hape (correctly, because its importance is not as a direct exception, but rather than the metre stick of whether international law applies or not).  More importantly, it later asserts in a review of international law disconnected from the effective control discussion that “[i]t cannot be that the Charter will not apply where the breach of a detainee’s purported Charter rights is of a minor or technical nature, but will apply where the breach puts the detainee’s fundamental human rights at risk … That is, it cannot be that it is the nature or quality of the Charter breach that creates extraterritorial jurisdiction, where it does not otherwise exist. That would be a completely unprincipled approach to the exercise of extraterritorial jurisdiction” (at para. 310-11).

One understands this concern.  But it is exactly this variable standard that international law and Hape (in my view) dictate: the Charter will follow the flag to the extent that Canada’s international human rights obligations also follow that flag.  And because those human rights obligations hinge on the effective control test, the result may be a patchy reach of the Charter to the overseas activities of Canadian officials.

To compound the difficulty, I have argued elsewhere that the extraterritorial reach of the ICCPR and the Torture Convention are not necessarily identical.  See Craig Forcese, “A New Geography of Abuse? The Contested Scope of US Cruel, Inhuman and Degrading Treatment Obligations,” (2006) 24 Berkeley Journal of International Law 908-938.

But at core, this case (on appeal) stands to be won or lost on the effective control test.  Setting aside the confusion about where that test should be situated, with respect, the Federal Court gives rather short shrift to the international authorities endorsing this test as the measure for the extraterritorial reach of the ICCPR and its closest analogues. 

Also left unaddressed in this case (presumably because it was not argued) is the customary international argument.  If, as Hape affirms, customary international law is the common law of Canada, is there not a simple common law argument to be made that Canada cannot transfer detainees where there are reasonable grounds to fear torture?

Subsequently, if the extraterritoriality hurdle is ever overcome, other legal questions will press.  For example, what exactly are the substantive obligations not to transfer to torture under ICCPR Art. 7 and Torture Convention Art 3 (or under customary international law)?  And have they been met by, inter alia, the Canadian-Afghan transfer arrangement?

Open Courts and CSIS Warrant Applications

Cross-referencing: National Security Law (NSL), Ch. 11, p.451; Ch. 10, pp. 402 et seq.

In a decision issued in 2006, but only released publicly in 2008, the Federal Court set a new standard for transparency in the adjudication of CSIS warrant applications.  Pursuant to section 21 of the CSIS Act, CSIS must seek a warrant for certain intrusive investigative techniques from a special, designated judge of the Federal Court.  These applications are ex parte and in camera, for the obvious reason of preserving the surreptitious nature of the investigation.

The Federal Court concluded, however, that the CSIS Acts provisions requiring that warrant applications must be heard in private must be construed in keeping with the now rich (constitutional) jurisprudence favouring open courts.  The actual warrant applications themselves must be secret.  However, collateral matters arising in these applications – such as general questions of law – need not be.  As Justice Noël notes, “[i]n some circumstances, to debate a jurisdictional, procedural or constitutional question in public can be injurious to national security or prevent the proper execution of a warrant.  It is also possible to imagine cases where the public hearing would be allowed on some of the issues of law, while others would remain confidential” (at para. 47).  In the case at bar, the Court concluded that the jurisdictional question at issue, if disclosed publicly, could be prejudicial to national security – “addressing the question of law in public could have the effect of informing of methodologies utilized for obtaining information in a covert fashion” (at para. 55).

Some time after this decision, Justice Blanchard released a decision on the extraterritorial reach of the CSIS warrant process (discussed here).  Justice Blanchard refers to the Noël J. decision, which itself was also released in redacted form.  Like the Blanchard J. determination itself, it is now clear that the matter before Justice Noël dealt with the extraterritorial reach of the CSIS Act warrant process.

Extraterritorial Application of the CSIS Act

Cross-referencing: National Security Law (NSL), Ch. 3, p. 84; Ch. 11, p.451.

In a decision issued in October 2007 (but released publicly in 2008), the Federal Court has placed strict geographic limitations on CSIS warrants (and indeed, perhaps CSIS operations).  At issue was whether the Court had the jurisdiction to issue a warrant under section 21 of the CSIS Act in relation to investigations concerning Canadians, but to take place overseas.  The Service had sought the warrant because the targets of the investigation were Canadians, and potentially enjoyed Charter rights.  That uncertainty, urged the Service, stemmed from the Supreme Court’s reasoning in Hape, which did not foreclose (it was argued) the application of the Charter to overseas security and intelligence activities affecting Canadians. (For further discussion on the confusion in the jurisprudence created by Hape, click here.)

Faced with this issue, there were two plausible courses of action open to the Court.  First, it could have concluded that the CSIS Act’s warrant provisions reached only as far as authorizing searches and seizures in Canada.  This would have allowed the Court to avoid the incongruity of a Canadian court “legally” authorizing an invasion of privacy taking place in a foreign jurisdiction whose own laws would probably be violated by the action.  In these circumstances, the domestic legal propriety of CSIS’s conduct would hinge on whether the Charter (and its protections against unauthorized searches and seizures) had the extraterritorial reach imagined by the government.

 

Second, the Court could conclude that CSIS itself has no statutory authorization to conduct extraterritorial investigations.  Ultimately, this is where the Court came down.  At core, it takes the view that Canadian statutes have no extraterritorial reach unless expressly authorized.  Since, in the Court’s view, no such authorization can be imputed from the CSIS Act, there is no permission for CSIS to conduct security intelligence investigations overseas.  Moreover, unless expressly rebutted by the statute, Canadian statutes are to be construed in keeping with international law.  The conduct of extraterritorial investigations (without consent of the territorial state) would violate international law.

 

The Court’s holding seems to reverse both CSIS’s own views in terms of its security intelligence function (namely, that it is authorized by section 12 of the Act to operate internationally) and the position many commentators, myself included, have taken about that ability.  (See, e.g., the discussion at p.84 of NSL.)   Section 12 has often been contrasted to section 16.  The latter allows CSIS, upon request from the ministers of defence or foreign affairs, to participate in foreign intelligence gathering (i.e., intelligence other than the security intelligence covered by the section 12 mandate), but only within Canada.  The absence of this geographic qualifier in section 12 – coupled with the geographically expansive definition of “threats to the security of Canada” – has led me (and others) to conclude that CSIS’s security intelligence function is geographically unbounded. Notably, the “threats” definition often includes threats that arise not only “within Canada” by also those “relating to” Canada.  The juxtaposition of “within” and “relating to” strongly suggests both a territorial and extraterritorial scope to the threats amenable to CSIS scrutiny under section 12.

That the Court saw the matter differently is proof that statutory interpretation is a matter very much in the eyes of the beholder.

The consequences of this decision are significant.  Because the Court chose to comment adversely on the reach of CSIS’s section 12 mandate, the door on extraterritorial security intelligence operations (conducted without the consent of the territorial state) may now be closed.  This creates a potentially acute blind spot.  Since the Communications Security Establishment is admonished by sub-section 274.64(2) of the  National Defence Act not to direct its foreign intelligence collection (in practice, signals intelligence) at Canadians, there would appear to be no agency now authorized to conduct intelligence investigations (of either the human or signals intelligence sort) targeting the extraterritorial activities of Canadians (without the consent of the territorial state).  At best, CSE can intercept communications with an incidental Canadian nexus (that is originating within or directed at Canada), with a ministerial authorization.  The resulting lacunae may tip the balance in prompting the government to table amending legislation creating a true foreign intelligence service or function.

Amicus Role for Canada Evidence Act Proceedings

Cross-referencing: National Security Law (NSL), Ch. 10, p. 405 et seq.; p.417 (note 174 and accompanying text).  See also posting below "Uncertainty in the Canada Evidence Act".

In section 38 Canada Evidence Act proceedings involving Abdullah Khadr, Justice Mosley ordered on January 15, 2008 the appointment of a security-cleared amicus curiae to attend the ex parte proceedings, view the secret information and test the government position.  Abdullah Khadr (brother of Omar Khadr, the Canadian detained at Guantanamo Bay) is in the midst of extradition proceedings involving the United States in which national security information is at issue, triggering the section 38 process.

Justice Mosley did not decide the issue of whether such an amicus is constitutionally required under section 7 (a position suggested in the earlier Federal Court case of Khawaja, but then made uncertain by the Federal Court of Appeal's decision in that case).  Rather, he relied on the court's inherent jurisdiction to appoint an amicus to assist in its deliberations.  The decision suggests that such an appointment will be an unusual exercise of this power.  However, on the facts in this case, the appointment was warranted.  Among the considerations cited by the court:

• that the underlying proceeding involved an extradition in which Khadr had a limited ability to challenge the case and in which the potential penalty, upon conviction in the United States, was imprisonment well in excess of his life span.
• that the evidence employed by the United States in support of the extradition may have been obtained through torture and illegal detention;
• that the safeguards to preseve a fair trial in the Canada Evidence Act where information is withheld in underlying proceedings for national security reasons would not be applicable in a U.S. proceeding subsequent to an extradition; and,
• that the Attorney General is, in effect, in an adverse position vis a vis Khadr as the agency with carriage of the extradition proceeding on behalf of the United States.

The amicus was appointed in a capacity that would see them presenting issues favouring the disclosure of the information, and in that respect can be said to be acting for Mr. Khadr.  No solicitor-client relationship will, however, exist.  Moreover, continued contact between the amicus and Mr. Khadr after the former has seen the secret information will be permitted only by court order.

In this last respect, the regime constructed in this case resembles that anticipated by Bill C-3.  Of particular interest are the circumstances and constraints the the court will impose on continued contact between the amicus and Khadr.  Developments on this point will likely give some sense at to how the Federal Court will approach the identical issue in relation to special advocates under Bill C-3, if enacted.  As noted elsewhere in this blog, the effective absence of continued access in the United Kingdom special advocate system has gravely undermined the credibility of that system.

Recent Developments in the Application of ITAR Dual Nationality Rules in Canada

National Security Law (NSL), 8, p.349-50.

Since research for NSL was completed, there have been several developments in US ITAR export controls and employment by Canadian defence contractors of dual nationals with a nationality from a state on the US proscribed list. First, in May 2007, the Department of National Defence (DND) announced a settlement with the U.S. government permitting DND “personnel” with the problematic nationalities to be omitted from the ITAR rules. As described by DND, “access to defence articles and services exported under the ITAR will be granted to DND personnel who are Canadian citizens, including dual nationals, who have a need to know and a minimum secret-level security clearance. DND personnel include Canadian Forces members, civilian employees, embedded contractors, and employees of other government departments working within DND. Canadian standards and procedures will continue to be used to process security clearances.”

Second, in July 2007, the Ontario Human Rights Commission announced a settlement in the several human rights complaints that had been brought against General Motors by dual nationals (with a nationality from an ITAR proscribed state). As described by the Commission, “[m]onetary remedies were provided to the complainants. Under the settlement, General Dynamics Land Systems Canada Corporation will continue with its practice of making all reasonable efforts to secure such lawful permission as may be obtained to minimize any differential treatment for such employees.”

Most recently, on January 18, 2008, a similar settlement was announced in a human rights complaint brought against Bell Helicopter in relation at the Quebec Human Rights Commission. In reporting the settlement, however, the Commission also underscored “its opposition to the application of the ITAR rules in Québec because of their discriminatory impact. It has conducted a legal analysis of the rules and concluded that they include requirements that are inconsistent with the Québec Charter of Human Rights and Freedoms. More specifically, they infringe the right to equality without discrimination based on ethnic or national origin.”

Given this observation, it seems certain that compliance with ITAR dual nationality rules will continue to raise human rights difficulties for Canadian defence contractors unless some sort of settlement on the issue is reached between the Canadian and U.S. governments.

Call to Canadian Government to Raise Child Soldier Issue in Khadr Proceedings at Guantanamo

In an open letter to Foreign Affairs Minister Maxime Bernier released today, forty-seven law professors from around Canada called on the government to intervene in the case of Omar Khadr and raise issues of international law concerning child soldiers. This call comes as these and other Canadian law professors and a score of Canadian parliamentarians prepare to file their own intervention Friday on the child soldier issue in the trial of Omar Khadr at Guantanamo Bay. This letter is available here.

Trying Omar Khadr in Canada: New report on Canada's Guantanamo Bay detainee

A team of students in the uOttawa Faculty of Law Foreign Policy Practicum has submitted a report to the Standing Senate Committee on Human Rights summarizing the publicly available facts in the Omar Khadr case and contesting recent Canadian government claims that Khadr could not be tried in Canada for his alleged acts.  This report, Repatriation of Omar Khadr to be Tried under Canadian Law: An Overview of the Case Against Omar Khadr and the Prospect of Canadian Criminal Jurisdiction, is linked to this blog.

Omar Khadr is the only Canadian - and indeed the only Western - citizen held by the United States at Guantanamo Bay naval base. He is also one of the first persons against whom criminal proceedings have been brought under the controversial U.S. military commissions system. (Australian David Hicks was technically the first, though he reached a plea bargain agreement and thereby avoided the trial procedure). Omar was captured by U.S. forces in Afghanistan after a fire-fight in which he is said to have participated. He was 15 at the time.

While other U.S. allies have demanded and secured the release of their nationals from Guantanamo, often subsequently conducting their own criminal investigations or proceedings against former detainees, the Government of Canada’s efforts on Khadr’s behalf have been desultory in comparison. In reaction to calls for the repatriation of Omar from human rights and other groups, the government has responded that the U.S. military commission process should take its course. More recently the government has suggested that, if repatriated, Khadr could not be charged for the offences he is said to have committed prior and during the Afghan firefight.

The uOttawa Foreign Policy Practicum report suggests that he could be tried in Canada; that is, in a proceeding before a fair and impartial tribunal applying internationally-accepted fair trial rules and taking proper account of his age at the time of the alleged offences (a consideration that has not as of yet been deemed relevant in the US military commission proceeding).  The report calls on the Canadian government to seek Khadr's repatriation to Canada.

Uncertainty in the Canada Evidence Act

Cross-referencing: National Security Law (NSL), Ch. 10, p. 405 et seq.; p.417 (note 174 and accompanying text).

The Federal Court of Appeal has now issued the second of two decisions stemming from the Canada Evidence Act proceedings at issue in the Khawaja anti-terrorism prosecution.  In the first decision, Canada v. Khawaja, 2007 FCA 342, the Court of Appeal upheld the approach applied by the Federal Court (and described at NSL pages 406-07) in balancing the national security interest in secrecy against the public interest in disclosure (although it quibbled with how this test had been applied to at least some of the actual secret material in question).

In the second decision, Khawaja v. Canada, 2007 FCA 388, the Federal Court of Appeal reviewed Justice Lutfy's conclusions in the court below on the constitutionality of the in camera, ex parte regime created by the Canada Evidence Act in section 38.11.  (See discussion at PIL, Ch. 10, p.410 et seq.) The Federal Court of Appeal concluded that section 7 was not infringed by these procedures, as "the features of subsection 38.11(2) do not fall below the level of fairness required in section 7 of the Charter".  Ibid at para. 31.  (All the concurring opinions came to the same conclusion, along the way raising some surprising doubts about whether section 7 was triggered at all).  The court said little more on this issue. 

In comparison, Justice Lutfy, in the court below, identified as one of the safeguards that rendered s.38.11 compliant with section 7 the authority of the judge to appoint an amicus curiae.  This person could "be provided access to the secret information to read, hear, challenge and respond to the ex parte representations made on behalf of the government" -- in other words, they would act as a sort of proxy for the excluded party.   Khawaja v. Canada, 2007 FC 463 at para. 50.  From this, it follows that use of a "special advocate" (or to make less sweeping my rendition of this case in the book, at least the possibility of such a use) is constitutionally required to meet the section 7 requirement.  (PIL Ch. 10, p.417).

Given the Federal Court of Appeal's silence on this issue -- and its simple endorsement of section 38.11 as it stands -- this extrapolation is no longer sustainable.  It remains to be seen what will happen if (most likely, when) this matter is appealed to the Supreme Court.

Minor amendments proposed to Bill C-3 by Commons committee

Cross-referencing: National Security Law (NSL), Ch. 10, p. 414 et seq.

The Commons public safety committee has completed committee hearings on Bill C-3, the amendments to the Immigration and Refugee Protection Act creating a "special advocate" regime in security certificate proceedings.  Four substantive amendments are proposed: creating a species of confidentiality obligation for information obtained by the special advocate during private conversations with the interested party; excluding the prospect of information produced by torture or cruel, inhuman and degrading treatment from being used as evidence in the proceeding; giving some priority to the choice of the interested party in identifying who will serve as the special advocate; and, obliging the government to provide appropriate resources to the special advocate.  See Committee report to the Commons.

These are welcome amendments.  They do not, however, address core preoccupations with the special advocate model.  Without guaranteed continued access by the special advocate to the interested party after the former has seen the secret evidence (albeit, subject to an obligation not to disclose that secret evidence) and an affirmative obligation on the government to disclose all relevant information to at least the judge and special advocate (the actual performance of which obligation can then be verified by the Security Intelligence Review Committee), the Bill C-3 model does not improve on the controverisal UK special advocate system.  It is also categorically worse than the model employed by SIRC in its own adjudication of complaints against the Canadian Security Intelligence Service.

Notably, the latter complaints often concern security clearance denials, and thus involve proceedings that do not trigger the life, liberty and security of the person interests protected by section 7 of the Charter.  If C-3 passes unamended, and subsequent Federal Court practice does not improve on the Bill's deficiencies, Canada will have the following system: 

Those denied security clearances for government jobs are able to challenge those determinations in a proceeding in which a type of special advocate has continued access to the complainant even after the former has seen secret evidence and in which that special advocate is able to piggy-back on SIRC's statutory powers to see all of the information in the possession of CSIS, except cabinet confidences.  (See the CSIS Act, s.39).

Those detained (potentially indefinitely) or alternatively released under extremely strict conditions on their liberty while the government attempts to remove them, even to face the possibility of torture, are entitled to a system in which the special advocate has little or no contact with them once the former has seen the secret evidence and in which the special advocate has no affirmative authority to challenge the scope of government disclosure to the judge and the special advocate and is left simply to raise doubts on this issue without any means of automatically resolving these doubts.

The government has repeatedly asserted that it does disclose all relevant information in its possession, and the Federal Court has crafted caselaw which imposes a good faith obligation to do so.  In this case, then one reasonably expects that codifying this obligation in Bill C-3 should not meet with objections.  It would appear it has, however.

Even accepting the bona fides of the government, what the government considers "relevant" and what a special advocate charged with defending the best interests of the detained person considers "relevant" will not always line up.  This discrepancy of views has arisen in the United Kingdom.  It is also an observation affirmed by the experiences of the Arar commission: by all accounts, commission counsel (because they were able to compel everything) found material that the government had declined to disclose that was material to the commission's deliberations.  Put another way, there has to be someone empowered to rifle through the government's files who is not also charged with advancing the government's case.  In the context of security certificate proceedings, SIRC is the obvious candidate.

In the final analysis, Federal Court judges may in fact authorize continued (meaningful) access and press the issue of disclosure as fully as would SIRC.  The objections voiced above may, therefore, fall away.  If they do not, this juxtaposition of two systems raise serious questions as to whether the C-3 regime will be sustained over the course of inevitable constitutional challenges.  The Supreme Court may have said that, in relation to the section 1 analysis, the government need not come up with the perfect system.  Confronted, however, with a situation in which those with no constitutional right at stake have a better system than those detained and potentially removed to torture, it is difficult to imagine the Court won't have strong things to say.