Monday, December 1, 2008

Policy Options Examined

In determining the policy to propose, we explored three options. This post will explore the first two options examined, and rejected. The following post will discuss the policy option we chose.

The first policy option we looked at was to maintain the status quo and rely on the revised provisions of the IRPA as described in earlier posts. This is the position of the current government and received some support in the recent Federal Court ruling. In that recent decision, the judge determined that it was too soon to fully gauge the impact of the revised provisions in terms of human rights violations (this despite the considerable evidence provided by Canadian special advocates and well as experience from other jurisdictions that the special advocate model cannot effectively protect detainees).

Not surprisingly, we rejected this option. As we have argued, the current legislation does not effectively meet either of its main objectives - it neither protects us from violent/terrorist acts (given in part on its reliance on deportation rather than criminal prosecution), nor does it meet appropriate standards for protecting the legal rights of detainees (e.g. given the lack of access to evidence by the detainee or his counsel, use of indeterminate detention).

The second policy option we looked at was maintaining the security certificate model but replacing the special advocates with SIRC (Security Intelligence Review Committee) or a SIRC-like body. SIRC is an arms-length body that reviews CSIS (Canadian Security Intelligence Services) activities and reports directly to Parliament. According to a SIRC submission to the Senate Committe on The Anti-Terrorism Act in 2005, it was established "to provide assurance to Parliament that CSIS is complying with the law in the performance of its duties. In doing so, the Committee ensures that CSIS does not undermine the fundamental rights and freedoms of Canadians while it carries out its mandate to guard against threats to national security."

Members of SIRC have full security clearance and would be able to view the evidence against detainees/individuals subject to the security certificates in ways that even special advocates and federal judges currently do not. It is argued that this would provide better safeguards to detainees as SIRCs would be able to weigh evidence more effectively and make more informed decisions regarding the actual risks posed by detainees. However, SIRC currently undertakes retrospective reviews of CSIS files and cases rather than monitoring current activities and this framework would clearly require a substantial overhaul in order to bring it back into line with the requirements of the security certificate process.

This option was one of the models recommended within the Supreme Court decision that struck down the original IRPA security certificate provisions. In that judgment, Supreme Court Chief Justice McLachlin highlighted the fact that under previous legislation, security certificates were not be issued without a SIRC review until 1988 for foreign nationals and 2002 for permanent residents. The Court saw the SIRC model as more effectively striking the right balance between national security and human rights. Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9

This position was also strongly endorsed by many Liberal MPs and Senators, despite ultimately voting for the current legislation due to fears of the looming deadline.

Despite some additional safeguarding offered to detainees by a SIRC review, we ultimately rejected this policy option as well. It did not address the use of deportation vs criminal prosecution for those deemed to require the use of a security certificate. While it may have allowed for a more detailed, thorough exploration of the evidence against individuals subject to the certificates, it continued to deny detainees full access to that evidence and maintained the use of indeterminate detention. It also fully maintained the discriminatory distinction between perceived threats by Canadian citizens and non-citizens, focusing exclusively on the latter. In fact, in the above quote by SIRC Executive Director Susan Pollack, she is explicitly clear that SIRC's mandate is to protect the rights and freedoms of Canadian citizens from state abuse in the name of national security.

So, if the status quo was unacceptable and the use of alternative Canadian models such as SIRC cannot address the flaws of the current legislation, what policy option could we recommend? In the next post, I will lay out the policy changes that we are advocating.

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