NATIONAL SECURITY LAW: Canadian Practice in International Perspective

Security Certificates: Time for a Plan B

Cross-referencing: National Security Law (NSL), Ch. 10 pp. 410 et seq. and Ch. 14, pp. 569 et seq.

In an October 2009 opinion editorial in the Globe and Mail, I wrote that “[t]he security certificate system as a tool of anti-terrorism is dead.” This op-ed followed the dismissal of the certificate against Adil Charkoui, upon withdrawal of much of the secret information deployed against him. The latter act, in turn, followed a court order to disclose more information than the government (and the Canadian Security Intelligence Service, in particular) believed that it could without prejudicing national security interests. (CSIS director Richard Fadden has since described this decision as follows: “the demands for disclosure in the Charkaoui security certificate case pushed us beyond what we could accept. We were faced with a pretty fundamental dilemma: to disclose information that would have given would-be terrorists a virtual road map to our tradecraft and sources; or to withdraw that information from the case, causing a security certificate to collapse. We chose the path that would cause the least long-term damage to Canada and withdrew the information.”)

In my op-ed, I noted that four other security certificate cases “continue, and the government could ‘win’ a few in the short-term.  But even if it demonstrates a reasonable basis for its allegations, the saga will continue – security certificates are supposed to be about deportation. And that prospect seems vanishingly remote because of the risk that the four remaining individuals will be tortured if deported. All of this means that the government will inevitably need a ‘plan B’ for the future.”

It seems useful to expand on my contentions in this blog, in more than the 800 words permitted for the op-ed.

The Objectives of Security Certificates

            Security certificates were (and are) supposed to about removal of security threats from Canada. Detention, or other restrictions on liberty, associated with the security certificate are supposed to be temporary, persisting only up to removal.  That removal is supposed to be speedier under a security certificate than are regular inadmissibility proceedings in front of immigration adjudicators.  A security certificate goes directly to a Federal Court judge (whose decision on the reasonableness of the certificate is final, and amounts to a removal order).  Immigration adjudicator decisions are subject to more layers of possible review.

            Of course, none of these objectives have been met in relation to the five (now, four, post-Charkaoui) security certificates issued against suspected terrorists/terrorist affiliates. Unlike in past cases involving, e.g., Russian sleeper agents, removal has been vigorously contested by these five, each of whom risks removal to a jurisdiction with (at best) a spotty record on torture.  Effectively, the Canadian security certificate labels (or reveals, depending on the truth of the matter) these individuals as members of organizations whose purposes are invariably at variance with the interests of their countries of origin to which they may be removed. In these circumstances, it is to be suspected that authorities in those states will have their own agendas to pursue with these individuals, giving rise to a prospect of torture that does not exist with, e.g., the removal of Russian sleeper agents.

            In the result, these individuals have been detained (or subject to strict conditions on their liberty) for very long periods of time as each dimension of the security certificate system is tested up and down the court system.  For these individuals, caught between the rock of removal to torture and the hard place of limitations on liberty in Canada, security certificates have become a de facto system of “control orders”, analogous in effect to the system existing in the United Kingdom and Australia. 

            This scenario seems likely to recur each time a security certificate is used against an individual suspected of being a terrorist/terrorist affiliate, and removal is to a country that a) has a poor record on torture and b) whose own national security interests are engaged by the individual’s suspected acts or affiliations.  Moreover, this scenario is likely to recur even if, instead of security certificate, the government resorts to the regular inadmissibility proceedings under the Immigration and Refugee Protection Act (IRPA).  This may be a different system, but it creates the same incentive to contest removal, and the same constitutional issues in terms of detention and removal to torture.

The Inadequacies of Immigration Law

            This raises the question of whether immigration law can ever be used as an effective tool of anti-terrorism.  (There is an argument that, factually, immigration remedies just displace the security risk – fortifying the Canadian border does not reduce the playing field for terrorists elsewhere.  Still, I can see how displacement may still be strongly desirable, especially if it disrupts a terrorist agenda.)

Examining the question from the narrower perspective of “legally, can immigration law ever be used as an effective tool of anti-terrorism” my answer would be: Yes, to the extent immigration law can be used to, e.g., pre-screen suspected terrorists before arrival in Canada (for example, security checks and the issuance of visas).  Yes, to the extent suspected terrorists/terrorist affiliates who do arrive in Canada are subject to removal to a country that doesn’t torture. No, in other circumstances.

No Removal to Torture, Period

To expand on this last statement: the IRPA at present does permit removal where national security interests are substantial enough, even where there is a serious prospect of torture. But international law does not.  As discussed in NSL, Article 3 of the Torture Convention is unequivocal: no removal, no matter what, “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”  Article 3 further specifies: “For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.” (It is worth noting that the UN Human Rights Committee has construed the International Covenant on Civil and Political Rights, Art. 7, as containing an equivalent restriction).

Accordingly, any application of the IRPA (or the Charter of Rights and Freedoms) that would allow removal in the face of these “substantial grounds for believing” would violate our international obligations. It really is that simple.

Much ado has been made about the Supreme Court’s 2002 decision in Suresh that seemed to open the door a crack under the Charter to removal to torture where the extenuating circumstances were dire enough. I think, personally, that that crack no longer exists.  Suresh wasn’t dealing squarely with the issue – the comment was obiter.  Since 2002, the courts seem to have become much less sympathetic to government national security claims.  Most importantly, as I argue at p.577 of NSL, the Supreme Court has also since reaffirmed its commitment to interpret the Charter in keeping with Canada’s international obligations.  And, as noted, those international obligations are unambiguous.

No Guarantees from Assurances

            A frequently cited solution to the conundrum of removal to torture is the concept of “diplomatic assurances”; essentially, supplementary promises from the receiving state that it won’t abuse the person upon his or her return.  If credible, these assurances would vitiate the “substantial grounds to believe” the person will be tortured.  As discussed in NSL, p.576, assurances are regarded as doubtful guarantees by the human rights community and attracted negative commentary by the Supreme Court in Suresh (and in subsequent Federal Court cases).

            The assurance concept has been pursued most earnestly in the United Kingdom.  Human Rights Watch has prepared an overview of this policy.  This approach earned a conditional blessing from the House of Lords in its 2009 decision of RB v. Secretary of State.  Essentially, whether the assurance displaces the reasonable grounds to believe threshold is a question of fact, dependent (among other things) on the state in question and the nature of the assurance.  (See in particular, the reasoning of Lord Phillips in paragraphs 106-126, Lord Hoffmann in paragraphs 182-194 and Lord Hope in paragraphs 235-242).

            However, I find it hard to believe that those facts ever add up to a viable assurance in the Canadian context. The problem with assurances, of course, is that they constitute a promise not to do something that is already illegal in conventional and customary international law and, invariably, the law (and perhaps even the constitution) of the torturing country. It strains credulity that when these robust sources of obligation prove ineffectual, some supplementary memorandum of understanding will prove effective, especially if that understanding includes no on-going monitoring by the deporting country of the returnee’s status.  The following are, for me, a sobering and damning indictment of assurances:

            First, the assurance is not enforceable in international law.  It is not a treaty obligation. The deporting state would have no standing to enforce it, even assuming that there was an international venue competent to assume jurisdiction over the dispute.

            Second, a diplomatic assurance issued by one branch of government – the foreign ministry, for example – may be done completely in good faith and have no impact whatsoever over the actions of the security services. As CSIS director Fadden commented in his recent speech, “in some countries the intelligence agencies are more influential than their foreign ministries”.  Whether a security service will feel bound by a diplomatic assurance entered into by some other branch of government is no sure bet.  

            Third, even if the security service itself agrees to the assurance, compliance depends entirely on a cost-benefit analysis: what is the cost of non-compliance against the benefits of violating the agreement. A country that views its key national security interests imperiled by the actions of the terrorist entity with which the returnee is implicated and which takes the view that extreme interrogation/intimidation is in its interests may have strong incentives to violate the agreement. The countervail is the disrepute that country would then be held in by the deporting country (assuming the latter even found out about the abuse, an uncertain possibility). That disrepute might imperil future returns and other forms of intelligence cooperation. 

This may be a reasonably potent countervail where the assurance is given to, e.g., the United States or the United Kingdom – states with whom the torturing state may have important relationships.  Canada’s place in the hierarchy of global power is very different, and the countervail is accordingly much weaker.  Moreover, for a long time, the government has repeatedly urged (in submissions on the need to protect foreign-provided intelligence from disclosure and elsewhere) that Canada is a practical supplicant in the world of information-sharing.  All told, the government’s evidence in Canada Evidence Act and security certificate cases is that we receive more intelligence from our partners than we give – we need them more than they need us.  In Mr. Fadden’s words: “just as we have diplomatic links with countries with poor human rights records, so must there be intelligence links. If Canada’s only intelligence sharing took place with countries that had pristine human rights records, there would be little we could do to track threats across a turbulent planet.” It seems very unlikely indeed that we would truly imperil or curtail a relationship with a foreign state’s intelligence services over the treatment of someone we ourselves regard as a security threat.

Also of note, our record in terms of forestalling torture appears to be spotty, even where we do (presumably) have influence. The record of treatment of battlefield detainees transferred from the Canadian Forces to Afghan authorities in Afghanistan is now a matter of some controversy, but it seems very likely that some number of them have been maltreated.  This is true even with the prisoner transfer arrangements concluded between Canada and Afghanistan – arrangements that while imperfect, are probably more demanding than anything likely to be found in a diplomatic assurance.

            In sum, diplomatic assurances are an unsustainable solution to the inadequacies of immigration law as a tool of anti-terrorism.

Plan B

            So the solution must come from a completely different body of the law. RCMP Commissioner Elliot championed a criminal law-led approach in an October 2009 speech, and it is a view I also expressed in my op-ed. 

            To be clear, the criminal law is no solution to the dilemmas posed by the five anti-terrorism security certificates that have proven so contentious (that is, those of Almrei, Charkaoui, Harkat, Jaballah, and Mahjoub).  The alleged behaviour that has been used to implicate these individuals pre-dates the anti-terrorism provisions in the Criminal Code and Security of Information Act added by Bill C-36 in 2001.  This criminal law cannot, for constitutional reasons, be applied retroactively.

            Still, these individuals have been incarcerated and subject to restraints on liberty for length periods of time, and courts have now universally agreed that that fact attenuates the security threat they are alleged to pose. Put another way, if they were dangerous, they are now less dangerous and that danger can be contained by measures short of detention and even the initially very strict limitations on liberty imposed on their initial release. Plan B should not, therefore, be driven by a preoccupation with these five individuals – it risks contorting policy to fit the peculiarities of a handful of cases.

The Criminal Law’s Reach

            Critically, the criminal law now reaches very far in terms of terrorist activity.  As discussed in NSL chapter 7, it has a strong preemptive dimension, encompassing behaviour that once would have been unassailable in criminal law because it was “merely preparatory” to an actual offence.  Indeed, it captures much – if not all – of the sorts of actions apparently at issue in the security certificate cases.  Note, for example, the provisions included (rather incongruously) in the Security of Information Act:

20. (1) Every person commits an offence who, at the direction of, for the benefit of or in association with a foreign entity or a terrorist group, induces or attempts to induce, by threat, accusation, menace or violence, any person to do anything or to cause anything to be done

(a) that is for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests [a very broadly defined concept, set out in section 3]; or

(b) that is reasonably likely to harm Canadian interests.

(2) A person commits an offence under subsection (1) whether or not the threat, accusation, menace or violence occurred in Canada.

(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life.

22. (1) Every person commits an offence who, for the purpose of committing an offence under … 20(1), does anything that is specifically directed towards or specifically done in preparation of the commission of the offence, including

(a) entering Canada at the direction of or for the benefit of a foreign entity, a terrorist group or a foreign economic entity; …

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years.

Note also this provision from the Criminal Code:

83.18 (1) Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

…

(3) Participating in or contributing to an activity of a terrorist group includes … (d) entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group …

             Under the latter provision, entering Canada to serve as a “sleeper” for a terrorist group is almost certainly a crime.  Under the former provision, entering Canada for the purpose of extorting, e.g., Tamils to provide financial support to the Tamil Tigers (a terrorism financing offence) would likely be guilty of a crime.

Proving Crimes

            Proving criminal offences is another story, and is the true disincentive to pursuing this Plan B.  Criminal proceedings are open – much more so than the security certificate proceeding – and disclosure rules are robust (although the difference between the two bodies of rules has been narrowed by the Supreme Court’s Charkaoui II ruling).

Accordingly, if the evidence to be deployed against an individual comes from an allied security service, extreme sensitivity over its disclosure would likely terminate a prosecution – as discussed in NSL, chapter 10, the “third party rule” and “originator control” make disclosure of foreign-provided intelligence a damning sin in intelligence sharing circles.  Likewise, domestic security services are extremely wary of their own sources and techniques being dragged into open court. The Canada Evidence Act does provide a means for protecting this information from disclosure.  It also allows a trial judge to toss criminal charges if non-disclosure would produce an unfair trial.

This reality makes criminal trials possible in the following circumstances:

1.     The information supplying state consents to the disclosure of the key inculpatory information; or,

2.     In the absence of that consent, a security-sanitized summary of the evidence can be prepared that accommodates the national security preoccupation while not materially impairing the fairness of the trial; or

3.     The Canadian security services have enough inculpatory evidence of their own which does not prejudice their own sources and techniques to support a conviction (note that the common law has long recognized informer privilege in criminal trials).

(There is, of course, a fourth possibility: Canada ignores the third party rule, and uses foreign-provided intelligence in criminal prosecutions without consent. Such a course of action would almost certainly destroy Canada’s relationship with foreign intelligence services, putting in great peril further information sharing of a sort that may be absolutely critical to Canada.  I do not, therefore, believe that this fourth possibility merits discussion).

Option 3 appears to be in play in the “Toronto 18” proceedings.  Option 2, in effect, arose in the Khawaja case (through the Canada Evidence Act).  Option 1 is the most thorny issue. The bottom line is that every state faces the dilemma of the third party rule in terrorism cases – modern terrorism straddles borders and implicates a whole web of information sharing networks. To the extent each state treats the third party rule as absolute – and refuses to consent to disclosure in the court proceedings of another state – each pursues a policy that may, applied against it, imperil its own prosecutions. The result is a sort of intelligence “beggar thy neighbour” approach.

In these circumstances, states must consider requests for disclosure of their shared intelligence carefully (and not dismiss them out of hand, or demand secrecy for even the most banal information).  Indeed, it seems wise to develop protocols on how and where information can be disclosed in court proceedings, perhaps concluded initially between states with similar legal systems. These protocols would vitiate CSIS’s complaint in some of the security certificate cases that even asking for permission to disclose foreign provided intelligence creates the impression that the agency is soft on secrecy, and not to be trusted.

(As an aside, I would not support the introduction of IRPA-style special advocates in criminal cases. It departs too radically from our criminal law tradition to exclude the accused from his or her own trial – I can’t see it being desirable or constitutional or (given recent successful prosecutions in Canada) necessary.  That said, I think there is a role for special advocates to represent the interests of the accused in the collateral Canada Evidence Act proceedings where decisions on the disclosure of secret evidence to the accused are made).

 Preventive Detention?

            Objections to a Plan B focused on the criminal law also often urge that there will be instances where actions needs to be taken immediately, perhaps even precipitously, to disrupt a terrorist plot before evidence of a quantity or calibre to support a conviction beyond a reasonable doubt has been collected.

            As noted, the post-2001 terrorism provisions reach very far into once “merely preparatory” behaviour.  It stands to reason that these urgent scenarios arise less often if behaviour several steps removed from actual terrorist violence is criminalized.  But of course, urgent situations where the criminal law is not yet engaged will still arise, even if more rarely.

In these circumstances, the state does need a tool.  As discussed in NSL, chapter 14, the United Kingdom and Australia both have tools of preventive detention and so-called “control orders” that remove or limit the liberty of action of terrorist suspects.  Comparative systems of preemptive detention – or detention without charge – are described in a report by the UK human rights organization, Liberty.

Canada’s system of so-called “preventive detention” – sunsetted several years ago – is modest in comparison.  The bill currently before Parliament would restore this same system.  As I will describe in a supplemental blog, I believe that this system is appropriate (although the bill deserves some tightening up). I think it is enough, in the absence of a very compelling case grounded in the actual facts of the Canadian security situation that something more draconian is necessary.

 Conclusion

            In sum, I believe that as a legal matter, the tools for an effective system of anti-terrorism are available, even though the back of the immigration approach is broken.  I defer to RCMP Commissioner Elliot on whether the sort of plan B that I support – a back to basics criminal law approach – is adequately financed.  His view is that law enforcement has been the poor cousin in the post-9/11 terrorism strategy.  His opinions on this point are certainly consistent with what I’ve heard from others.  All of this leads to my final (and perhaps banal) conclusion: Rather than throwing more money at security certificates, we should now be better financing criminal investigations.

Parsing the Law on Torture: Criminal culpability in the Afghan detainee controversy?

Cross-Referencing: National Security Law (NSL), Ch. 10, pp. 542 et seq.

There has been substantial attention directed in the last week to parliamentary testimony by a Foreign Affairs official on who knew what and when about the possible torture of Afghan detainees transferred by Canadian Forces to Afghan prisons.  Much remains to be resolved about the facts in this case (not least contradictions between the official's testimony and that of Canadian generals this week), and the dust has not yet settled.  But even at this juncture, there is a subtext of commentary on the possible criminal culpability of Canadian Forces personnel, and perhaps those in the civilian chain of command in Ottawa, for these transfers. All of the discussion I have seen so far raises “war crimes”, whether in the context of the Crimes Against Humanity and War Crimes Act or the International Criminal Court, or “torture”, within the meaning of section 269.1 of the Criminal Code.

I’m not persuaded by what I’ve seen so far on these two issues (at least insofar as Canadian law is concerned). I thought I’d memorialize my doubts, perhaps enticing a correction from those who know this area better than I do.

In preface, let me repeat observations made in NSL: the prisoner transfer “arrangement” between Canada and Afghanistan that existed before revisions in 2007 was inadequate.  The absence of independent follow-up after transfers was an obvious flaw, one not present in the transfer agreements concluded by other NATO countries.  This was a critique advanced by others – such as Amir Attaran – well before me, and I believe he and others were correct and insightful to do so.

The more recent 2007 arrangement is much more robust, although like others, I persist in the view that no arrangement can really guard against torture where such acts are pervasive. I remain among those who think that Canadian investment in properly run prisons (run by NATO or under close NATO supervision) should have been part of our involvement at the outset. People I respect tell me that’s naïve. It’s hard for me to believe, however, that the downside of such an investment would be worse that the torture controversy that has since swirled around the Afghan deployment. Nor do I agree with the “sovereignty” complaint; that such a prison would unduly infringe Afghan sovereignty.  The 2007 “arrangement” does sovereignty infringement in a big way – a NATO run prison would simply be more of the same.

This is all water under the bridge. The question of the day is now criminal culpability. That issue raises a number of sub-questions.  In dealing with these, I shall assume the worst-case description described in the parliamentary testimony; namely, that Canadian soldiers and officials knew that prisoners they were transferring were being tortured. I do so for the purpose of the discussion below, without prejudging what may become known about the facts in the future.

War Crimes?

First, could a Canadian Forces (CF) soldier doing the transferring (or their superior who ordered the transfer) be culpable under the Crimes Against Humanity and War Crimes Act (CAHWC Act).  Torture is a war crime. This is true whether we assume the conflict in Afghanistan is a non-international or international conflict. It is the former and has been at for some time, in my view. But either way, torture is precluded by Geneva Convention III (for international conflicts) and Common Article III and Additional Protocol II (for non-international conflicts) and by customary international law.

But I’m not aware of any credible allegations of Canadian soldiers doing the torturing. We’re in the realm of transfer to torture.  Transfer to torture is dealt with in international law; not least in the UN Convention Against Torture, Art. 3. And I think there are reasons to believe that that treaty’s bar on removal to torture could apply to Canadian conduct within Afghanistan. See NSL, pp. 542-3. But Article 3 is not a source of individual criminal culpability (as opposed to state responsibility).

If this were an international conflict, governed by Geneva Conventions III and IV, there would be concrete rules in international humanitarian law on prisoner transfers – not least, the sending state must be satisfied that the receiving state will abide by the Conventions in terms of prisoner treatment.

But this isn’t an international conflict, so we have no codified rules on prisoner transfer of any particular note. That said, s.6 of the CAHWC Act makes it clear that one can be culpable of a war crime when one “conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to” that war crime; e.g., torture. So an obvious limitation on prisoner transfers, even in a non-international conflict, is “don’t transfer in a manner that amounts to conspiring, attempting, being an accessory or counseling” torture. If you do, then there is a possibility of criminal culpability, both individually and through command responsibility.

Which brings us to the specifics of the Afghan detainee issue. I don’t see how, even if all allegations made last week prove absolutely true, you reach any of these “inchoate” offences of conspiracy, attempting, being an accessory or counseling. As I suggest in the table below, all of these things require an actus reus and mens rea aimed at producing the criminal conduct (the torturing). As such, they just don’t fit what, as suggested in the testimony, was a careless, indifferent, wrong-headed, and foreseeably inadequate policy, but not one intended to produce torture.

As for command responsibility, s.7 does use the words “criminally negligent” to describe a failure of supervision by a superior officer.  But that language can’t be read in isolation. It refers to criminal negligence in terms of supervising the person under the superior’s authority who actually commits the actual war crime.  So you still need someone within the CF chain of command committing the underlying war crime. Per the discussion above, that doesn't exist on the present facts. Command responsibility based on an argument that CF officers had effective control over the Afghan prison guards who did the torturing seems a total non-starter.

(As an addendum, the concept of aiding and abetting applied in international criminal law appears to be less demanding of the mens rea requirement that is the case for the inchoate offences listed in the CAHWC Act. There, knowledge may suffice, without a more specific intent to assist in the perpetration of the crime aided and abetted.  See the discussion in Joseph Rickhof, "Complicity in International Criminal Law and Canadian Refugee Law," (2006), 4 Journal of International Criminal Justice 702 at 707. Aiding and abetting is not, however, mentioned in the CAHWC Act.  Moreover, this international jurisprudence was developed by the ad hoc tribunals for the former Yugoslavia and that for Rwanda. I note that the concept of aiding and abetting in the Rome Statute, creating the international criminal court, specifies that the aiding and abetting must be for "the purpose of facilitating the commission of the crime", which seems to impose a test that precludes mere transfer with knowledge of torture from being cognizable as aiding and abetting. If I am wrong on this, I certainly welcome a correction.)

Torture?

Section 269.1 of the Criminal Code makes torture a crime, whether it occurs within Canada or abroad.  Once again, we are not discussing here torture committed by the Canadian Forces.  So could a CF soldier still be culpable under the Criminal Code for torture committed by an Afghan official?  Like the CAHWC Act, the Criminal Code includes inchoate offences, most notably those in section 21 et seq. The one of greatest note here is “aiding and abetting”. As the chart below suggests, aiding and abetting comes closest to “transferring to torture” from an actus reus perspective. But the mens rea (in Canadian law) appears to require more than recklessness – it requires more specific intent to actually contribute to the criminal offence. (And this ignores the mind-bending issue of whether s.21 itself has extraterritorial reach when tied to section 269.1, or instead is confined to aiding and abetting that occurs in Canada).

Requirements for Various Inchoate Offences

Offence	Actus reus (Action)	Mens rea (Mental state)
Conspiracy[1]	Agreement by two or more persons to commit a criminal offence. There must be a “meeting of the minds, a common purpose or mutuality of object between the conspirators.”	An intention to put their common design into effect
Attempts	Acts taken to further the intent	Section 24 of the Criminal Code requires “intent to commit an offence”.  As “the crime of attempt may be complete without the actual commission of any other offence and even without the performance of any act unlawful in itself, it is abundantly clear that the criminal element of the offence of attempt may lie solely in the intent.”[2]
Accessory after the fact	Receives, comforts or assists a person for the purpose of enabling that person to escape, per s.23 of the Criminal Code.	Knowing that a person has been a party to the offence, per s. 23 of the Criminal Code.
Counselling	Counsels (which includes procure, solicit or incite) another person to be a party to an offence and that other person is afterwards a party to that offence, per s.22 of the Criminal Code.  In other words, “the deliberate encouragement or active inducement of the commission of a criminal offence.”[3]	“Intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused's conduct”.
Aiding or Abetting, per section 21 of the Criminal Code	Aids, assists, encourages the criminal offence	Has the purpose of aiding a person to commit an offence, and intends that the actions will assist/encourage the perpetrator.[4]

 

 

What’s Left?

I readily concede that in my quick musings on this question I may be missing something. But until corrected, I’m left with the view that the war crimes and torture culpability discussions I’ve heard to date skate quickly over “complicity” to criminal culpability, without unpacking what “complicity” really means.  That complicity has to fit the round peg of Canadian criminal law, and to date the facts don’t fit that round peg.

So does that mean the criminal law has no place here? No, of course not. Here’s what I would be most concerned about if I was in the CF or government.

Under s.130 of the National Defence Act, the Criminal Code travels with the CF, and applies to their conduct abroad. So criminal culpability remains to be measured against all of the offences in that tome. The most obvious is criminal negligence:

219. (1) Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

221. Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

(Note that a CF soldier was recently prosecuted for criminal negligence in relation to the discharge of a weapon that killed a fellow soldier in Afghanistan). Everything hinges on the facts of the Afghan transfer issue and whether it transgresses the standard of “wanton or reckless disregard”.  As noted, the dust hasn’t settled on that yet, but criminal negligence may be a likely candidate. A wanton and reckless transfer would be causally linked to the ultimate bodily harm, and presumably cognizable as criminal negligence.

An interesting subsidiary question is whether the prisoner transfer arrangement applicable at the time insulates those doing the transferring from any claim that they were acting wantonly or recklessly. Would it matter that the arrangement was inferior to others applied by other Alliance forces? Could its actual existence be used as evidence of actual knowledge of risk, which was then recklessly disregarded through continued transfers even once the inadequacies of the arrangement became clear?

A further question concerns those in the civilian chain of command who may have issued the instructions that culminated in the transfer to torture.  Could culpability extend to these people? Well, if we assume that instructions were issued in Ottawa that transgress the criminal negligence threshold, at least part of the conduct that might be construed as criminal negligence took place in Canada. In these circumstances, it seems plausible that a Canadian court would have jurisdiction per the Supreme Court’s reasoning in Libman v. The Queen.

All of this leads to my view that Canadian criminal law could be in play in the Afghan detainee controversy, just not the criminal law I hear most discussed to date. To repeat – I think we need more facts to make a clear-headed judgment on this issue. And getting to those facts must be an absolute priority.

---

[1] See, e.g., R. v. Alcantara, [2009] ABQB 524 at para. 31 et seq.

[2] R. v. Ancio, [1984] 1 SCR 225.

[3] R. v. Hamilton, [2005] SCC 47 at para. 29.

[4] R v. Helsdon, (2007) 84 OR (3d) 544 (On CA).

Chronology of Security Certificate Decisions

Cross-Referencing: National Security Law (NSL), Ch. 14.

Over the course of her work for me this Fall, one of my research assistants -- Michelle Lutfy -- has prepared a very useful chronology of security certificate decisions issued between October 2007 and October 2009. I am posting it here in the hope that it might also be of assistance to others. Thanks to Michelle for preparing this document.

Government Secrecy and National Security

Cross-Referencing: National Security Law (NSL) Ch. 10.

Belatedly, I am providing a link here to an article I published with the Institute for Research on Public Policy (IRPP) that develops some of the themes in Chapter 10 on government secrecy and national security:

Craig Forcese, "Canada's National Security "Complex": Assessing the Secrecy Rule," (2009) 15(5) IRPP Choices 1.

Bill C-35: An Act to deter terrorism, and to amend the State Immunity Act

Cross-Referencing: National Security Law (NSL) Ch. 7.

In June 2009, the government introduced Bill C-35 in the House of Commons. If enacted, this law project would create a civil cause of action for terrorism (linked to the concept of terrorism offences in the Criminal Code).  It also eliminates state immunity against such lawsuits for state-supporters of terrorism.  The latter are relieved of the protections of the State Immunity Act, once they are listed as terrorism supporters by the Governor in Council.

The Library of Parliament has prepared an excellent summary of this bill, and some of the commentary (and criticism) it has elicited.

For my part, I support this bill. First, I have no objection to the idea of terrorists and their state sponsors being amenable to the civil jurisdiction of Canadian courts. Indeed, there is a certain symmetry in emphatically extending civil jurisdiction over terrorists. After all, since 2001, both territorial and extraterritorial terrorism activities are cognizable as crimes in Canada.  Yes, I believe the new law would be largely symbolic – much like the Alien Tort Claims Act in the United States.  It seems unlikely it would be employed that often, and even less frequently would damages be collected. However, I see no difficulty with symbolism. And, at any rate, there have been cases under the ATCA that go well beyond symbolism. The fact is that terrorists do occasionally wash ashore in Canada, and I am not at all troubled by the prospect that they might be served with a statement of claim soon after.

Second, I believe that the new bill is constitutional from a division of powers perspective, in exactly the same manner as the civil remedies in the federal Competition Act are constitutional.  On this point, I take great comfort, for example, in the Supreme Court’s holding in General Motors of Canada Ltd. v. City National Leasing.

Last, I believe it would be possible to employ this law in a manner consistent with public international law.

It is important to be clear on this point.  On its face, this bill is inconsistent with public international law in so far as it lifts state immunity for state supporters of terrorism.  State immunity is not some peculiarly Canadian concept codified in the State Immunity Act. On the contrary, the latter implements Canada’s public international law obligations. If the State Immunity Act falls out of alignment with public international law, we have a problem.  First, we risk a Congo v. Belgium-style savaging in the International Court of Justice.

Second, we may attract countermeasures from other states. We open the door to lawsuits against, say, Iran in Canada, and Iran takes steps against some Canadian interest in Iran.  Iran might be inclined to take such steps anyway, but a violation of state immunity rules by Canada opens the door to a potentially viable claim by Iran that its actions constitute bona fide countermeasures in public international law.

There is an earnestly help view out there that state immunity rules do not apply to state support for terrorism (or torture, crimes against humanity, war crimes, or genocide).  That argument usually urges that because the prohibitions on these acts are jus cogens, there simply can’t be state immunity in relation to the civil suits they might prompt.  This is a logical and quite attractive line of thinking.  It is not, however, correct.  My views on this point are found in Craig Forcese, “De-Immunizing Torture: Reconciling Human Rights and State Immunity,” (2007) 52 McGill Law Journal pp.127-169.

Nothing has happened since that article to change my mind (although, I’d be happy to be proved wrong on this point). Put simply, there is simply no sufficiently widespread and consistent state practice with opinio juris establishing such acts as exceptions to state immunity. I wish there were, and indeed bill C-35 might someday count the column of such state practice.  But at present, it just doesn’t exist.

Meanwhile, there is quite a bit of international law that closes the door to such an exception. Belgium v. Congo couldn’t be more hostile to the notion that really awful behaviour is exempted from state immunity. Admittedly, that case involved the ratione personae species of state immunity and not ratione materiae.  Still, no support for a jus cogens exception to state immunity in relation to the latter can be found in (admittedly puzzling) decisions such as the House of Lords holding in Jones v. Saudi Arabia.  Nor can a few outlier Greek and Italian cases with different holdings be considered decisive.  First, they turned on rather peculiar and distinguishable facts (not least, German actions on Italian and Greek soil in World War II).  Second, Germany has taken Italy before the International Court of Justice because of these cases, and Italy may well take a bruising.

Perhaps most damning, the very recent UN Convention on the Jurisdictional Immunities of States and their Property (not yet in force) recognizes no exception to state immunity for terrorism, or any of the other jus cogens candidates.  I agree fully that it boggles the mind that commercial activity by states is exempted from state immunity, while terrorism, torture etc., is not. But there are historical reasons for that, and it is what it is.

All of this brings me back to my observation that it should be possible to apply bill C-35 in a manner that complies with public international law.  Here, the Governor in Council listing process is absolutely critical.  I know that there is a constituency out there that dislikes this listing discretion – they want the matter handed to the judiciary plain and simple, without a prior listing by the executive.  I understand that preoccupation – parts of hell may freeze over before Foreign Affairs agrees to list a state with any degree of enthusiasm.  But then, heel dragging on listing could itself be amenable to judicial review (albeit on a very tender standard of review).  And, to give Foreign Affairs some credit, there just might be good diplomatic reasons not to list a given state.

But most importantly, having the executive stand as the gatekeeper opens the door to a background strategy that would keep our actual use of this law compliant with public international law. Here’s how I think it would have to work: a state sponsor of terrorism is (beyond any shadow of a doubt) violating its international obligations.  Even if that state has never signed an anti-terrorism treaty in its history, there are enough UN Security Council resolutions issued under Chapter VII of the UN Charter that now make anti-terrorism a firm international obligation of every state in the international community.

Having violated its international obligations, that state now faces the prospect of legitimate countermeasures.  On this point, I simply reproduce my argument for how best to engineer lifting state immunity for state torturers, set out in the McGill Law Review article cited above (with footnotes removed):

 

…countermeasures are permissible so long as proportional to the original breach, limited in time until the target state again conforms to its obligations, and do not themselves violate certain listed, core principles of international law. While diplomatic and consular immunity are included among the latter, state immunity is not. Certain procedural requirements concerning notice must also be met.  Specifically, the state imposing countermeasures must “[c]all on the responsible State … to fulfil its obligations [that are being breached]” and must “[n]otify the responsible State of any decision to take countermeasures and offer to negotiate”.

It follows that Canada would be free to relax state immunity rules in response to a violation of the prohibition on torture [or, as in bill C-35, terrorism] by another state for so long as those violations persist.  Opening the door to lawsuits seeking compensation for acts of torture would be a step clearly directed at deterring the violation, and more than proportional to the offence.  Civil liability is, after all, largely about compensation for injury done.  

Of course, in order to comply with rules on countermeasures, Canada would have to call upon the violating state to meet its obligations, and then give notice of its intent to introduce the countermeasure.  A blanket waiver of rules of state immunity for torture [or terrorism] in Canada’s State Immunity Act would not satisfy these requirements.  However, Canada could adopt an approach analogous to the US FISA rules allowing litigation against state sponsors of terrorism.  … this FISA exception to immunity is triggered only where the state is designated as a terrorism supporter by the US government.  Put another way, the abrogation of state immunity is dependent on executive branch approval.  Likewise, Canadian rules allowing lawsuits against states for torture could condition the removal of state immunity on certification from the Canadian government.   

 

Hence the need for the listing process anticipated by bill C-35, plus a lot of background action by the government prior to any listing to make sure the listing complies with the countermeasure pre-requisites discussed above (e.g., the notice requirement, etc.).  (On the last point, it may also be the case that even for a lawsuit in progress, state immunity would have to be restored if a state suddenly began complying with its anti-terrorism obligations but that is a debate for another day).

So my response to those who object to the government listing process is: be careful what you wish for. A law that puts Canada in non-compliance with public international law is just a trainwreck waiting to happen. Better to have the listing process, with all the concerns about executive branch gatekeeping, than no law at all.

Intelligence sharing agreements examined from a civil rights perspective

I am completing for publication an article based on a paper I delivered last Fall.  That paper concerned international intelligence sharing arrangments, with a focus on their human and civil rights implications.  The revised chapter shifts the focus of this paper more squarely on privacy issues.  I have, however, posted the fuller October version on SSRN.

The Charter and Guantanamo: More Federal Court jurisprudence on the reach of the Charter of Rights and Freedoms

Cross-referencing: National Security Law (NSL), Ch. 2, p.32.

In its February 2009 Slahi decision, the Federal Court offered yet another assessment of the Supreme Court's jurisprudence on the Charter of Rights and Freedoms' extraterritorial reach.  Put simply, Justice Blanchard concluded that on facts otherwise analgous to those at issue in the Supreme Court's Khadr decision, the Charter did not reach the conduct of Canadian officials conducting interrogations at Guantanamo Bay.  (At issue in Slahi, as in Khadr, was whether Canadian participation in interrogations made information held by Canada from those interrogations disclosable under Charter section 7 for use in American proceedings; in Slahi, in a habeas petition before US federal court.)  The key distinguishing fact for Justice Blanchard was the nationality of the applicants.  In Khadr, Khadr was a Canadian citizen.  In Slahi, the two applicants were foreign nationals, albeit ones who had lived in Canada. 

In rejecting the application of section 7, Justice Blanchard held that: "for section 7 Charter rights to apply, the circumstances must connect the claimant with Canada, whether it be by virtue of their presence in Canada, a criminal trial in Canada, or Canadian citizenship."

Justice Blanchard's decision is a careful parsing of the Supreme Court jurisprudence on the issue, and is considerably more persuasive than, for example, the recent Federal Court of Appeal decision on Afghan detainees.  But with respect, Justice Blanchard, like the Federal Court of Appeal, is preoccupied with citizenship, to an extent that sits uncomfortably with the doctrine that the Supreme Court (in my view) has developed in Hape and Khadr.  That doctrine (as I read it) does not depend on whether the victim of the said Charter breach was a Canadian or not to ground the extraterritorial reach of the Charter.  Yes, the facts in those cases did involve Canadians.  But the doctrinal discussions did not emphasis that link of nationality.  Instead, the test for extraterritoriality hinges on whether that done to the alleged victim was consistent with Canada's international obligations.  The Charter follows the flag to the extent that Canada's international human rights obligations follows that flag, irrespective of the nationality of the victim.

Any other approach to this question risks peverse results.  For example, under the Federal Court's current reasoning, a Canadian official who commits an extraterritorial execution overseas is not touched by the Charter, so long as the person so executed was a foreigner.  This rationale would come uncomfortably close to one of the Bush administration's positions on the reach of US anti-torture obligations.  At one point, that administration took the view that US obligations in international law not to engage in cruel, inhuman and degrading treatment did not extend to the treatment of foreign nationals overseas, because the US constitution did not reach those foreigners.  That position is one of several that should now be regarded as lying on the wrong side of history.  It would disappointing if Canada were to stumble onto this now discredited approach in its own jurisprudence.

Special Advocates: Towards Equality of Arms, one decision at a time

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

In Re Harkat, Justice Noël of the Federal Court issued a judgment authorizing the two special advocates assigned to that case (a security certificate matter under the Immigration and Refugee Protection Act) to communicate matters of legal strategy with special advocates writ large, with the support and in association with the arm's length special advocate support unit established at the Justice Department.  A welcome decision, the judgment reads, in its material parts:

The Court grants permission to Mr. Cavalluzzo and Mr. Copeland, in their capacity as special advocates in DES-5-08, to communicate with other special advocates (who have obtained the same judicial authorization from their respective designated judge) appointed in other security certificate proceedings to discuss common issues related to questions of jurisdiction, procedure, and substantive law and orders rendered or orders to be sought.  They are not authorized to refer directly or indirectly to any information or evidence which has been provided to them or to which they have been privy in their capacity as special advocates.

These communications are only authorized at meetings organized by the support resources group for special advocates.  The SAP shall determine the place and time for the meetings and shall, in consultation with the special advocates, establish an agenda.  A member of SAP with appropriate security clearance shall be present at all meetings to give administrative support to the special advocates. 

Mr. Cavalluzzo and Mr. Copeland are also authorized to communicate with the SAP for the purposes of implementing this order.

As the Court observes, communication between special advocates will allow harmonization of legal strategy, eliminating (or at least minimizing) the potential of duplicative, but perhaps inconsistent, motions on the many legal issues at play in security certificate proceedings (which in turn risk the possibility of varying court judgments).  This approach also follows the UK precedent, where (not without controversy, given opposition by the government), the Special Advocate Support Office hosts exchanges between special advocates.  In an affidavit filed in the Almrei matter, I described this UK practice as follows:

It has been the long-standing practice of UK special advocates to discuss both the public proceedings generally and also general points of principle raised in closed proceedings among themselves, particularly at institutional-knowledge sharing sessions organized by SASO. In circumstances where a fellow special advocate has a potential conflict – for example, that person is acting as the interested party’s counsel in a given case – that colleague recuses him- or herself from any discussion among special advocates of that particular proceeding. Moreover, special advocates are circumspect about discussing the actual underlying confidential factual evidence in communications with colleagues who are not assigned to the same case ...

If (as seems sensible) this approach is adoped by other judges in security certificate matters, it will render special advocates more effective.  Special advocates will continue to operate in splendid isolation in terms of assessing the facutal material (given its secret nature), but a good portion of successful lawyering is field-testing legal ideas with peers.  This is an advantage that has  always been enjoyed by the government lawyers in these cases.  As the Court wrote: "there are some clear indications (such as time required to consult before responding to an issue, the need for meetings etc.) that counsel for the Ministers do discuss issues common to the different security certificate proceedings.  Indeed, in submissions counsel for the Ministers acknowledged that they meet and discuss common issues."

Justice Noël's decision alone will not balance the playing field between government and named persons.  Named persons continue to be represented by public counsel who can talk freely to them, but don't know the facts, and special advocates, who know the facts but can't talk to them.  The right to know the case against oneself remains, to say the least, attenuated.  Still, allowing legal strategizing between special advocates is a step in the right direction.  At the end of the day, the overall objective remains: The security certificate process should not be a system in which the government is able to produce the outcomes it favours through force of unequal arms, rather than the persuasiveness of its case.

Afghan Detainees and the Charter: Another Perplexing Treatment by the Federal Court

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

Laws may not silent in times of war, but the Charter is (at least if the war is a foreign one).  At core, this is the implication of the Federal Court of Appeal's December 2008 decision in Amnesty International v. Minister of National Defence.  The Federal Court of Appeal upheld a Federal Court decision, a judgment discussed elsewhere in this blog.  It did so based on a reading of the Supreme Court's decision in Hape that seems impossible to defend in light of that Court's further decision in Khadr.

In my view, Hape and Khadr stands for the following proposition: absent consent by the foreign state, the Canadian Charter of Rights and Freedoms does not attach to the overseas actions of Canadian officials except where those actions are contrary to Canada's international obligations (and more specifically, its international human rights obligations).  The threshold question is, therefore, whether the Canadian officials are acting in compliance with Canada's international human rights obligations.  If they are not, then the Charter applies.

The analysis that should have been undertaken by the Federal Court of Appeal concerns, therefore, the scope of Canada's international human rights obligations in relation to Canadian Forces practices on Afghan detainees.  There, the inquiry must focus on the reach of instruments such as the International Convenant on Civil and Political Rights, the Convention Against Torture -- and there is a jurisprudence on the Covenant in particular that discusses the extraterritorial reach of human rights obligations to state agents acting beyond their borders -- international humanitarian law, and the issues of lex specialis that governs the interaction between this international humanitarian law and the aforementioned human rights treaties.  The question of "effective control" by the CF of Afghan territory, which has appeared in the Federal Court case as a separate ground for asserting the application of the Charter, is not a separate ground.  Instead, "effective control" is a short-hand for the test developed in the international jurisprudence to decide when the Covenant reaches the extraterritorial actions of states bound by it.

So, in sum, here is the analysis: The Charter applies if Canada's international human rights obligations apply.  Canada's international human rights obligations apply either because some norm of international human rights or humanitarian law reaches the conduct of the CF in Afghanistan.  Humanitarian law obviously does -- the Geneva Conventions and their customary equivalents attach to the armed conflict and extend georgraphically to the entire theatre of conflict.  Human rights law may, (a) so long as it is not displaced by the lex specialis of IHL (and, in a case concerning conditions of detention and treatment, there likely isn't any displacement, in my view -- lex specialis requires a contradiction between the two areas of law, not just overlap) and (b) so long as on the face of those treaties (and customary norms) which govern human rights law, there is extraterritorial reach.  On the latter point, the question then terms to the level of control exercised by the CF.

The Federal Court of Appeal, however, launches down a path of its own, denying that Hape and Khadr mean much at all when it comes to tying the Charter to Canada's international obligations.  Its most puzzling statement is this one: "I understand the Supreme Court of Canada to say that deference and comity end where clear violations of international law and fundamental human rights begin. This does not mean that the Charter then applies as a consequence of these violations."  But what else could the following statement from the Supreme Court in Khadr possibly mean:

[18] In Hape, however, the Court stated an important exception to the principle of comity.  While not unanimous on all the principles governing extraterritorial application of the Charter, the Court was united on the principle that comity cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations.  It was held that the deference required by the principle of comity “ends where clear violations of international law and fundamental human rights begin” (Hape, at paras. 51, 52 and 101,  per LeBel J.).  The Court further held that in interpreting the scope and application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law (para. 56, per LeBel J.). 

[19] If the Guantanamo Bay process under which Mr. Khadr was being held was in conformity with Canada’s international obligations, the Charter has no application and Mr. Khadr’s application for disclosure cannot succeed: Hape.  However, if Canada was participating in a process that was violative of Canada’s binding obligations under international law, the Charter applies to the extent of that participation.

A search and replace of para 19 would read:

If the detention process under which Afghan detainnes are being held was in conformity with Canada’s international obligations, the Charter has no application and the Afghan detainee's application for Charter relief cannot succeed: Hape.  However, if Canada was participating in a process that was violative of Canada’s binding obligations under international law, the Charter applies to the extent of that participation.

It should be as simple as that.  We'll see what the Supreme Court does on appeal.

Special Advocates: The Continued Saga on Continued Communication

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

As noted in past posts, an issue of contention in Canada's new "special advocate" process for immigration security certificates is the capacity of special advocates to persist in communicating with the named persons once the former have seen the secret information.  See, e.g., December 13, 2007 post.  In essence, such communications must be approved by a judge.  Indeed, on the wording of the Act, all special advocate communications concerning the "proceeding" (and not just those that actually involve secret information) must be approved by a judge. 

Not surprisingly, special advocates and public counsel for the named persons in the current round of security certificate cases view these constraints as a) overbroad and b) greatly impairing of their functions.  (In the interests of full disclosure, I must report that I agree with them, and so attested in an affidavit ultimately filed in the motion discussed below).

In terms of overbreadth, the restrictions on communications lack nuance: communication about the proceeding could include telling one's spouse that one is in court, or a parliamentary committee that one is unhappy with the workings of the process. 

In terms of impairing special advocate functions, first, there is good reason to believe that carefully worded questions to named persons that reveal no secrets can elicit information material to the outcome of proceedings.  That has been the experience of some special advocates, acting in prior capacities as legal agents in proceedings before the Security Intelligence Review Committee (and the view shared by commission counsel, now special advocates, in the Arar inquiry).  For more on this point, see the report on the UK special advocate system Lorne Waldman and I prepared in 2007.

Second, special advocates are obviously concerned that seeking advance clearance from judges (possibly in the presence of government counsel) on what questions they will ask of the named person will be prejudicial -- a special advocate searching out exculpatory detail will presumably have to explain how it is given questions could do that (without revealing secrets to the named person).  If, subsequently, permission is given, and no exculpatory result produced, the judge (and government lawyer if present) will be keenly attuned to the fact that the questions were asked and nothing useful produced.  If anything, this would have the affect of bolstering the government's case (and the judge's acceptance of it).  There's a reason solicitor-client confidentiality in conventional legal relationships includes not just answers given, but questions asked.  For exactly these sorts of reasons, in the UK, special advocates have for the most part declined to seek permission to ask questions on substantive matters because of the need to produce these in writing, vetted by tribunal and government.  (The issue of whether seeking permission from the tribunal can be done on a ex parte basis is currently before the English courts).

Armed with these concerns, public counsel in Almrei mounted a constitutional challenge to the new communications regime, one joined by other named persons and the special advocates as a class.  In early November, Justice Lutfy of the Federal Court declined to address the constitutional issue, determining it to be premature because an insufficient factual record existed -- specifically, no one had actually asked for continued communication and been denied.

Again, readers should be conscious that I am an affiant with a declared view on this matter in reviewing my assessment of this decision.

First, to his credit, Justice Lutfy cut away at least some of the perversity caused by the overbroad communications rules, through an exercise in statutory interpretation.  So special advocates can communicate with their staff, colleagues and family members (and hopefully anyone else!) about their whereabouts.  Special advocates can communicate with the special advocate support unit at Justice concerning their resource and administrative needs.  (But note, since communication is confined to resource and administrative needs, it is unclear whether we can move to a UK style system where the support office is privy to the secret information and can provide analytic support on the secret side of the ledger).  And special advocates on the same case can talk to each other.

On other issues, however, the decision resolves little.  First, the status quo -- communications that concern the proceedings, even if not dealing with secret information is impermissible without advance vetting by judges -- really does put special advocates at a disadvantage: the two special advocates assigned to each case stand in splendid isolation, unable to bounce ideas off other special advocates or lawyers on issues far removed from secret information (such as legal arguments) without pre-clearance from a judge.  Note the Court's sweeping conclusion: "special advocates cannot communicate with another person about the proceeding, absent judicial authorization, even concerning an order or direction made public by the presiding judge."  While special advocates could find themselves isolated in their efforts to respond to this (public) order, government lawyers presumably caucus at will.  This is hardly the equality of arms vital to a functioning adversarial system.

Second, prematurity seems to have no place in this scenario: at issue (at least in part) is whether special advocates should be obliged to go to judges in the first place.  That question is more than ripe.  To ask special advocates to go to a judge first, ask permission, be refused and only then be able to challenge whether they should have to go to a judge in the first place at best delays resolution of this issue (and at worst may arm the government with arguments on mootness and waiver, or some such thing).

Third, Justice Lutfy -- whose experience includes practical involvement with SIRC and therefore should attract substantial respect -- was unpersuaded that SIRC counsel's freedom to communicate was as ample as asserted by the applicants (and by this affiant).  In the Court's view, SIRC counsel is subject to the direction of the presiding SIRC member.  It only stands to reason that special advocates, in the even more emphatic scheme created by Parliament, should be subject to direction by a judge.  I confess, however, to having some doubt that the level of supervision exercised by the SIRC member comes close to the advance permission for questions we seem to be moving towards in the Federal Court -- certainly, no one I have spoken to who has participated in the SIRC process has described such close control.  (And there was nothing on this motion record that suggested that there is such close control).

In any event, what Parliament has done with the special advocate system (that differs from SIRC) is to create a closer relationship -- maybe best described as proto-solicitor-client -- between special advocate and named person.  That relationship -- which does not exist in the SIRC context -- is what creates particular difficulty in advance vetting of special advocate questioning by the (same) judge who serves as the ultimate arbiter of law and finder of fact.

The difficulty appears to lie in reconciling this proto-solicitor-client relationship (and the independence it connotes, quite different from that of SIRC counsel, as representative of SIRC) and wariness about disclosure (however involuntary) of secrets.  Justice Lutfy seems persuaded that this circle can be squared by individualized advance scrutiny of questions by judges, possibly in the absence of government lawyers (that is, on an ex parte basis).  That leaves intact, however, the concerns about chatting about questions with the actual decision-maker you need to persuade if you receive (or not) answers to those questions.

The compromise that takes us out from under this conundrum is to have the question of continued communication decided by a sort of "case management" judge, and not the judge hearing the case.  That resolves the problem of tainting the mind of the actual decision-maker by revealing questions while at the same time allowing the external supervision Justice Lutfy views as desirable.  If the managing judge refuses continued communication, that then becomes the appealable issue (and it would be best to treat it as immediately appealable since what follows could turn on this matter).

The security certificate process has, for a long time, evolved in fits and starts, with compromise piled on compromise and without a tremendous amount of careful advance design.  (On this point, more blame lies with the government in proposing and Parliament for legislating half-measures than with the Court in grappling with them).  But advance avoidance of train wrecks is in the interest of all concerned.  For this reason, the time is more than ripe for the Federal Court to take up the invitation proferred by Parliament in the amended immigration law, s.85.6(1):

"The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court may each establish a committee to make rules governing the practice and procedure in relation to the participation of special advocates in proceedings before the court over which they preside."