Special Advocates in National Security Proceedings

This is from the following site.

These advocates would be useful in the Iacobucci hearing. As it is now the hearing is transparently unfair: the terror suspects have no chance to hear any evidence against them and not even their lawyers are part of the in camera hearings. So far there have not even been summaries or any information about who is even being questioned.


September 05, 2007
Special Advocates in National Security Proceedings
“Special advocates” are security-cleared lawyers representing the interests of parties excluded from national security-related hearings in which the government leads secret information. They have been employed extensively in the United Kingdom and, to a lesser degree, in New Zealand in an effort to enhance the fairness of processes that, by denying the party the right to know the case against them, do not meet fair hearing standards. Canada has also used special security-cleared lawyers in proceedings before the Security and Intelligence Review Committee (SIRC), and the Arar Commission, among others, and is moving towards a fuller special advocate model in national security proceedings before the Federal Court (particularly in relation to security certificates under the Immigration and Refugee Protection Act). A study released August 31, 2007 by Craig Forcese and Lorne Waldman examines the role and utility of special advocates in Canada, the United Kingdom and New Zealand. Entitled Seeking Justice in an Unfair Process, the report draws on public source material, but mostly reflects insight obtained via telephone interviews and two London roundtables conducted during the summer of 2007 with over a dozen special advocates, the UK Special Advocates Support Office and several United Kingdom defence counsel and civil society organizations as well as other Canadian and foreign experts. The report concludes that the UK and New Zealand special advocate models suffer from a number of shortcomings, many of which do not exist in the model employed by the Canadian SIRC. he report was commissioned by the Canadian Centre for Intelligence and Security Studies, with the financial support of the Courts Administration Service, Federal Courts of Canada. It is part of a larger project with the Federal Court of Canada on the Administration of Justice and National Security in Democracies.



The below is part of an article on special advocates available in PDF form at:
http://aix1.uottawa.ca/~cforcese/other/sastudy.pdf

“Special advocates” are security-cleared lawyers representing the interests of parties excluded from national security-related hearings in which the government leads secret information. They have been employed extensively in the United Kingdom and, to a lesser degree, in New Zealand in an effort to enhance the fairness of processes that, by denying the party the right to know the case against them, do not meet fair hearing standards. Canada has also used special security-cleared lawyers in proceedings before the Security and Intelligence Review Committee (SIRC), and the Arar Commission, among others, and is moving towards a fuller special advocate model in national security proceedings before the Federal Court (particularly in relation to security certificates under the Immigration and Refugee Protection Act). This study examines the role and utility of special advocates in Canada, the United Kingdom and New Zealand. It draws on public source material, but mostly reflects insight obtained via telephone interviews and two London roundtables conducted during the summer of 2007 with over a dozen special advocates, the UK Special Advocates Support Office and several United Kingdom defence counsel and civil society organizations as well as other Canadian and foreign experts. The report concludes that the UK and New Zealand special advocate models suffer from a number of shortcomings, many of which do not exist in the model employed by the Canadian SIRC. This study advises that Canada build on the SIRC model rather than import the UK/New Zealand approach and makes the following specific recommendations: RECOMMENDATION 1: All questions of secrecy in relation to information withheld by the government should be assessed against the same balancing test; specifically, one analogous to that established in section 38 of the Canada Evidence Act in which a judge weighs the public interest in disclosure against the public interest in non-disclosure and is empowered to authorize forms and conditions of disclosure that reflect this balancing. RECOMMENDATION 2: Before even reaching the question of special advocates, a court must be persuaded that other, less rights-impairing alternatives will not preserve a bona fide government interest in secrecy. These alternatives include: • In camera proceedings during which named persons and their counsel are present; and, • In camera proceedings during which named persons’ counsel, but not their clients, are present. RECOMMENDATION 3: In the limited circumstances where alternatives are not reasonably available, a special advocate should be used to press for greater disclosure of secret information to the named person before the Federal Court (pursuant to the Canada Evidence Act-like balancing test discussed above) and, in relation to information that is not disclosed, to test its veracity in active cross-examinations and independent investigation. However, only a special advocate system with the following qualities is acceptable: 1. The government must make full disclosure to the special advocates themselves; 2. Special advocates must be authorized to question the named person after reviewing the secret information;
Seeking Justice in an Unfair Process iii
3. Special advocates must be highly-skilled trial advocates and must be adequately resourced, trained and independent of government, and; 4. The special advocate system must be established by statute, and not as an ad hoc measure. RECOMMENDATION 4: Separate and apart from a special advocate system, the currently undemanding burden of proof and standard of review applied to the government in immigration and other administrative proceedings should be escalated once it becomes clear that life, liberty or security of the person are in peril.