Cristin Schmitz, Lawyers Weekly, February 2008

Fifty lawyers have answered the federal government's call to join a roster of "special advocates" for immigration security certificate cases, but the legitimacy of their proposed new role is still hotly debated.

Lawyers remain split over whether the proposed independent counsel regime contemplated by Bill C-3 will improve the lot of detained foreign nationals and permanent residents accused of being security threats based on secret government evidence, or whether special advocates will be mere window-dressing for a legislative scheme that the Canadian Bar Association and other legal groups have slammed as "seriously flawed" and constitutionally dubious.

"The structure is just nonsensical and I suppose people who are in this business, and are following this, would think why would I apply for a job that Mickey Mouse should be doing?" commented Ronald Poulton of Toronto's Jackman and Associates.

Bill C-3, which has attracted strong opposition in Parliament and has not yet been passed, would keep under wraps secret information whose release could jeopardize national security or public safety, but authorize security-cleared lawyers to try to assist non-citizens who face deportation or continued constraints on their freedom based on the undisclosed evidence.

Poulton, who represents Hassan Almrei, one of half a dozen men currently detained under security certificates and at risk of deportation based on secret information, told The Lawyers Weekly he's not surprised that private-sector lawyers are not lining up to do the complex, arcane security certificate work which will pay up to $300 per hour, based on the case's demands and the lawyer's experience.

"There is no one in the defence Bar on the criminal or immigration side who could hold their head up after being in a job like that," argues Poulton. "We believe... we would be supporting a system that is unfair to the person against whom there are extremely serious allegations. It's a shocking process. You are in court one day, and then the next day they are going to have another court session without you, and then you come back into court the following day and they have said things that you, and the client, have no idea about. And usually, what we guess at, is that the secret stuff is about some personal relationship our client had, or did not have, with another individual, and so that's the kind of evidence that you really need the client to be able to comment on because its just ripe for false accusation. So what's the special advocate going to do?"

Critics of Bill C-3 argue the bill is fatally flawed because the special advocate faces major constraints in his or her ability to communicate with the person in relation to the government's secret evidence. "The special [advocate] has no relationship with the client, and so when it comes to cross-examining in chambers a CSIS person, how can you do that without having the background from the client or having the client present or listening to the evidence? It just doesn't make any sense," says Poulton.

But the government's Dec. 20 call for applications from private-sector lawyers with a minimum of 10 years at the Bar and "significant litigation experience" has elicited responses from some highly-qualified barristers.

Gordon Cameron of Ottawa's Blake Cassels & Graydon, who has worked for more than a decade as an outside counsel for the Security Intelligence Review Committee (which oversees CSIS) told The Lawyers Weekly he has applied because "I believe that people who are excluded from hearings that affect their interests have the right to be represented in those hearings, even if it can't be as fully as it would be with their immediate participation."

Cameron shares the main qualms about Bill C-3 expressed by the CBA and others, but notes that "in England where there is this controversy, this has not prevented a number of very highly qualified and high-profile barristers from taking up positions as special advocates."

Adds Cameron: "I certainly don't agree with that sentiment, that some sectors have, that [Bill C-3] is window-dressing. It is not as complete in giving the special advocate powers to protect named persons as I would have preferred, but it goes a long way. I think that provided that the presiding judge is prepared to exercise the flexibility that is allowed under the proposed legislation, this process could work effectively."

University of Ottawa law professor Craig Forcese, co-author with Lorne Waldman of an in-depth study on the use of special advocates in national security proceedings in the U.K. and New Zealand, said the Supreme Court made it clear last year in Charkaoui v. Canada (MCI) that some sort of special advocate system will be sufficient to allow the security certificate scheme to comply with the Constitution. "That ship has sailed," he observed, so lawyers should concentrate on pushing for the best possible special advocate system.

Forcese noted U.K "defence solicitors will not co-operate with the special advocates quite frequently because they think it's a bankrupt system, and the special advocates, on the other hand, say 'Look, we are performing a function that makes it a better system than what existed before when it was purely ex parte,' and so we are going to have the same debate here. I take the view that a good special advocate is a net improvement on what we had before."

He stressed, however, that the efficacy and credibility of the new special advocate system will depend, in significant part, on the hiring of talented, experienced, and committed barristers. "The worst possible situation is to have an indifferent special advocate – someone who is not a good cross-examiner, not sufficiently aggressive – which gives the appearance of more fairness without adding anything," Forcese suggested.

Department of Justice spokesperson Alain Charette told The Lawyers Weekly an independent "selection committee", chaired by retired Federal Court judge Andrew MacKay and including representatives of the CBA and the Federation of Law Societies, will recommend the special advocate candidates to federal Justice Minister Rob Nicholson for inclusion on a roster. They will only be able to work on one file at a time, Charette said.

The government would not disclose how many lawyers will be hired or other details at press time.

The government aims to pass Bill C-3, and have the special advocates in place, by Feb. 23, when the present security certificate regime, declared unconstitutional by the Supreme Court in Charkaoui, will expire. The court held last February that the present law violates the Charter's s. 7 guarantee of procedural fairness by making it impossible for non-citizens to defend themselves against allegations by the immigration minister that they are inadmissible to remain in Canada because they are terrorists, spies, criminals or human rights abusers since the minister's case is usually based largely on security or criminal intelligence information, supplied by CSIS or other agencies, that is tendered at a closed-door judicial review hearing before a single Federal Court judge.

The role of the proposed special advocates would be "to protect the interests" of the non-citizen, which could include trying to convince the judge that disclosure of the secret information would not impair national security or public safety, and challenging the relevance, reliability, sufficiency and weight of the evidence. He or she would be able to make submissions to the judge, cross-examine witnesses and, with the judge's authorization, exercise any other powers necessary to protect the non-citizen's interests.