Department of Justice Canada

Department of Justice Canada

March 13, 2010 12:45 ET

Minister of Justice Releases Terms of Reference for Independent Adviser to Review National Security Information

OTTAWA, ONTARIO--(Marketwire - March 13, 2010) - The Honourable Rob Nicholson, P.C., Q.C., M.P. for Niagara Falls, Minister of Justice and Attorney General of Canada, today released the Terms of Reference for the appointment of the Honourable Frank Iacobucci, Q.C., LL.D., as an Independent Adviser. Mr. Iacobucci will conduct an independent review of documents related to the transfer of detainees by the Canadian Forces in Afghanistan.

"As I stated in the House of Commons, the government acknowledges that it is appropriate that decisions on the disclosure of information in these circumstances be reviewed in an independent manner," stated Minister Nicholson. "This will ensure that parliamentarians will have access to the relevant government information on the arrangements for the transfer of detainees in Afghanistan while ensuring there is no injury to Canada's national defence, international relations or national security."

On December 10, 2009, the House of Commons passed a motion seeking access to documents that contain information that would potentially be injurious to Canada's international relations, national defence or national security if released. Mr. Iacobucci will review the protected information included in those documents as well as all other relevant documents, including those from the period 2001 to 2005, so that parliamentarians have a fuller understanding of the transfer arrangements.

Mr. Iacobucci will provide recommendations to the Minister of Justice as to whether information would be injurious to Canada's international relations, national defence or national security and whether any such information should nevertheless be released because the public interest in disclosure outweighs the public interest in non-disclosure. He will prepare a report on his methodology and general findings for public release. 

"As an independent and impartial adviser with significant expertise and experience in this area, Mr. Iacobucci will provide our Government with valuable advice for fulfilling our responsibilities to parliamentarians, Canadians and the Canadian Forces in Afghanistan," added Minister Nicholson.

Terms of reference and biographical notes on Mr. Iacobucci are attached. Mr. Iacobucci will be unavailable for public comment until his report is completed.

(Version française disponible)

Internet: www.canada.justice.gc.ca

BACKGROUNDER: TERMS OF REFERENCE

Whereas the House of Commons has adopted a motion, on December 10, 2009, ordering the production of Government documents related to the transfer of Afghan detainees from the Canadian Forces to Afghan authorities, which contain information the disclosure of which would be injurious to national defence, international relations or national security if publicly released;

Whereas the involvement of Canada in Afghanistan commenced in 2001, it is important, in order to understand the transfer arrangements post-2005, that Parliament have available to it relevant Government documents related to the transfer of Afghan detainees from the period 2001 to 2005;

Whereas the security of the nation and the conduct of international relations are fundamental responsibilities of the Government of Canada and there are matters which governments must keep confidential in order that the public interest may be best served, even in the freest and most open of societies;

Whereas the Government acknowledges that it is appropriate that its decisions on the disclosure of information in these circumstances be reviewed in an independent manner to ensure that parliamentarians have as full and complete access to Government information as is necessary to perform the function of holding the Government to account so long as injury to Canada's national defence, international relations or national security may be minimized;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Prime Minister, pursuant to paragraph 127.1(1)(c) of the Public Service Employment Act, hereby:

(a) appoints to the position of special adviser to the Minister of Justice and Attorney General of Canada, the Honourable Frank Iacobucci of Toronto, Ontario, as Independent Adviser, to hold office during pleasure and to advise the Minister of Justice and Attorney General of Canada as early as possible as to the period of time necessary to perform the review on the understanding that the reports set out below are to be completed expeditiously;

(b) specifies the duty of the Independent Adviser is to conduct an independent confidential review of the information that is proposed to be withheld from release by the Government in the following documents related to the transfer of Afghan detainees from the Canadian Forces:

  • all documents referred to in the affidavit of Richard Colvin, dated October 5, 2009;
  • all documents within the Department of Foreign Affairs written in response to the documents referred to in the affidavit of Richard Colvin, dated October 5, 2009;
  • all memoranda for information or memoranda for decision sent to the Minister of Foreign Affairs concerning detainees from December 18, 2005 to the present;
  • all documents produced pursuant to all orders of the Federal Court in Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada;
  • all documents produced to the Military Police Complaints Commission in the Afghanistan Public Interest Hearings;
  • all annual human rights reports by the Department of Foreign Affairs on Afghanistan;
  • all documents referred to by the Chief of the Defence Staff in his December 9, 2009 press conference; and
  • all other relevant documents, including those from the period 2001 to 2005;

(c) specifies that the Independent Adviser is to submit to the Minister of Justice and Attorney General of Canada a report, which shall:

(i) make recommendations as to what information would be injurious to Canada's international relations, national defence or national security ("injurious information") if it were disclosed;

(ii) make recommendations as to whether any injurious information or a summary of it should be disclosed on the basis that the public interest in disclosure, including for the purpose of providing parliamentarians with Government information necessary to hold the Government to account on the matter of the transfer of Afghan detainees, outweighs the public interest in non-disclosure for the purpose of preventing injury to Canada's international relations, national defence or national security, after considering the form of and conditions to disclosure that are most likely to limit any injury to international relations, national defence or national security; and

(iii) advise as to whether any document or information is subject to solicitor-client privilege or otherwise ought not to be disclosed for other reasons of public policy;

(d) specifies that the Independent Adviser will submit a summary report to the Minister of Justice and Attorney General of Canada, in both official languages, which will include a description of his methodology and general findings and which will be made available to the public by the Minister;

(e) authorizes the Independent Adviser to adopt procedures for the comprehensive and proper conduct of the independent review, including reviewing relevant records and documents and consulting as appropriate;

(f) fixes the remuneration of the Independent Adviser as set out in the attached schedule, which per hour rate is within the range ($500 - $650); and

(g) authorizes the payment, in accordance with Treasury Board policies, of the following expenses incurred in the course of his duties:

(i) travel and living expenses while in travel status in Canada while away from his normal place of residence in accordance with the Treasury Board Travel Directive and Special Travel Authorities;

(ii) expert staff, as required; and

(iii) any other reasonable expenses as necessary to conduct the independent review.

BIOGRAPHY

The Honourable Frank Iacobucci

The Honourable Frank Iacobucci, Q.C., LL.D. has had a distinguished career in private practice, academia, government and the judiciary. He began his career in 1964 as a lawyer at a large New York City law firm where he practiced corporate and securities law. In 1967, he joined the Faculty of Law, University of Toronto, and was a professor of law there until 1985. He also served as Vice-President, Internal Affairs at the University of Toronto from 1975 to 1979 and Dean of the Faculty of Law from 1979 to 1983. From 1983 to 1985, he was Vice-President and Provost of the University. In 1985, Mr. Iacobucci was appointed Deputy Minister of Justice and Deputy Attorney General for Canada; in 1988, Chief Justice of the Federal Court of Canada; and in 1991, a Justice of the Supreme Court of Canada.

During his career, Mr. Iacobucci was also a Commissioner of the Ontario Securities Commission from 1982 to 1985, and Counsel to the Estey Commission in 1974.

He joined Torys LLP as Counsel in September 2004 after retiring as a Justice of the Supreme Court of Canada. From September 2004 to July 2005, he also served as Interim President of the University of Toronto. Mr. Iacobucci has assumed a full-time senior advisory role at Torys where his work includes guidance, advice and support to clients of Torys and members of the firm.

Mr. Iacobucci recently concluded an internal inquiry into the actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin.

Mr. Iacobucci has received numerous awards, honours and other recognitions in Canada, the United States, England and Italy.

Contact Information

  • Office of the Minister of Justice
    Pamela Stephens
    Press Secretary
    613-992-4621
    or
    Department of Justice
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    613-957-4207