Paul Cavalluzzo Source of Photo: CBC.CA What follows are extracts from a press conference held by Paul Cavalluzzo, counsel to the Arar Inquiry, September 14, 2005 in Ottawa Paul Cavalluzzo: Although many of our hearings have been in camera, as is the case in analogous areas of the law like national security certificate cases, there are two fundamental differences with our procedure. First, the government evidence was vigorously tested on two bases. Our objectives were to ensure the reliability and accuracy of the evidence and to ensure that the evidence is the kind of information which should be heard in camera. The second difference is that government witnesses were cross-examined by independent commission counsel who had access to all of the documents and information we demanded from the government. As a lawyer I believe that the procedure we adopted might be a model for other areas of the law, such as national security cases which many Canadians believe is fundamentally unfair. Our procedure hopefully accomplished two values which underlie our legal system. First, in this kind of case, government evidence should be vigorously tested by independent counsel and not brought forward before a judge on an ex parte basis. Secondly, secret government evidence should be vigorously tested to ensure that it should not be disclosed to the public particularly when it is the government's actions or inaction under review. Transparency and openness should be the general rule.Paul Cavalluzzo: Well, I touched upon that and I think that is hopefully going to be one of the important legacies of this enquiry because it is a very - it is a crucial point because many many of our legal proceedings now, because of national security concerns, are being held in public and judges are being forced to make decisions based on secret evidence, evidence that is heard by the judge, only presented by the government counsel. What we have done with our procedure, we have done a couple of things. One is that we have as commission counsel who is independent of the government, have vigorously tested that to ensure that it is reliable, to ensure that it is accurate and the other thing we have done is we vigorously tested that evidence to ensure that that is kind of information that should be heard behind closed doors and we feel that the procedure that we have come up with, and once again it evolved over time in response to the national security complications that we faced, we feel that it is a model that can be used in other areas of law, particularly in national security certificate cases which, as a lawyer, and I can tell you as a lawyer, I find to be unfair because when an individual's liberty is at stake, it seems to me that the evidence upon which the government relies should be vigorously tested and should be vigorously tested by lawyers or counsel that are independent of that government.
Norman Khan, OMNI (ph.).
Question: My question is the pattern which has been answered. The second is about in your press release, you mention how you hope that the commission's work in areas of NSC claims and individual human rights will come in useful in security certificate cases. Can you elaborate how you think that would happen?
Paul Cavalluzzo: Well, once again, I'm speaking as a lawyer. I'm not speaking for the commissioner. The commissioner obviously will have his own views and will write whatever, but as a lawyer, what I feel is appropriate is that a national security case, I don't understand why the government can't have appointed independent counsel and I'm sure that the Law Society for example in Ontario, the Law Society of Upper Canada could come up with a roster of 20 lawyers, independent lawyers and I could be one of them, and who could be called upon at any time and this independent lawyer would have complete access to the government's file and during the course of the hearing before the federal court judge in which the application is heard, this independent counsel would vigorously test not only the reliability of the government's evidence, but also whether that kind of evidence shouldn't be disclosed to the individual party whose liberty is at stake. That way, we can ensure that the evidence is reliable because it has been tested by independent counsel and secondly that the evidence that is being heard behind closed doors should be heard behind closed doors, because that has been tested as well.
So that it would seem to me that in terms of our charter of rights, that that kind of situation is far less intrusive than what is going on today, wherein in effect, government lawyers are going behind closed doors before a federal court judge, presenting evidence that isn't really tested and then someone's liberty is dependent upon that process. As a lawyer, not as commission counsel, but as a lawyer, I find that fundamentally unfair.
Helene Buzetti, Le Devoir
Question: Just a little precision about when you say you would like to see appointed - to appoint independent counsel to test the evidence, I just would like to know what would be the difference between this counsel doing his job and the judge doing the job himself?
Paul Cavalluzzo: There is a great deal of difference, there is a great deal of difference in that the judge, prior to hearing the case, has had no access to that information. Okay, a judge can't prejudge the case so that when a judge comes out and sits down, he or she does not know what the evidence is. What an independent counsel could do, an independent counsel would be fully prepared with that evidence, would know the weaknesses of the evidence and before the judge, could cross-examine the government witness who says either this happened or that happened or that this evidence is so confidential, it has to be heard behind closed doors. An independent counsel could test that through the vehicle which certainly our legal system finds as the most important way to protect civil liberties and due process and that is cross-examination.
Moderator: Est-ce qu'il y a d'autres questions? Go ahead.
Question: A follow up to that, I believe that was suggested in one of the security certificate cases in Ottawa, the case of Harcat (ph.) and it went before Justice Dawson asking for a friend of the court to be appointed and it was turned down. I can't remember exactly the reasons for that decision, but clearly the courts have spoken on that, that very issue and are you saying that they have erred in that decision?
Paul Cavalluzzo: Well, I don't like to say the court erred, but certainly I disagree with that federal court decision and that issue is going before the Supreme Court of Canada very shortly and I'm - I can't predict what the court will do, but as I said before, the kind of process that we have come up with is just a matter of costs. We are talking about liberty of individuals on the one hand plus the cost of lawyers who would probably do this for nothing, just having - prolonging the case somewhat by forcing government witnesses to be cross-examined by independent lawyers, testing that evidence and I cannot see any, from my perspective, any reason as to why that is not workable. We have done it.
