This week, the Supreme Court of Canada has been holding its long-awaited hearings
into the constitutionality of security certificates
under the Immigration and Refugee Protection Act
(see Division 9, especially sections 77-78).
The certificates can be issued against non-citizens considered a threat to national security as a prelude to their deportation.
The lawyers for three such individuals against whom security certificates have been issued have argued the process doesn't allow suspects to properly defend themselves because they can't face their accusers, much of the judicial process takes place behind closed doors without the defendant or their lawyers present, and any evidence is kept secret if its disclosure may be injurious to national security.
It is argued that this is at odds with Canadian notions of procedural fairness because it negates the rights of the individuals affected.
Some legal observers have expressed interest in proposals to appoint some sort of "special advocate". Such an advocate would have security clearance to see the government's secret evidence and would then act on behalf of the affected individual without jeopardizing legitimate national security concerns.
The idea appears to be a compromise that preserves the use of confidential national security information without impairing (too much?) an individual's right to a full and fair hearing.
The idea of such a special advocate has been put forward by the lawyers for Mohamed Harkat, one of the three men, as well as by counsel for various parties that have been granted intervenor status, such as the Criminal Lawyers Association and the Canadian Bar Association.
Here are some of the alternatives that have been mentioned, either in the factums submitted, the oral submissions or in commentary:
1) There has been some discussion of the procedure in place at the time of Canada (Minister of Employment and Immigration) v. Chiarelli
,  1 S.C.R. 711
The case concerned the deportation order against someone thought to be involved in organized crime. The documentary evidence relied on in support of deportation, including a detailed summary of surveillance information, was disclosed to Chiarelli. 2 R.C.M.P. witnesses had testified in camera. The respondent was given the opportunity to respond by calling witnesses or by requesting that he be allowed to cross-examine the RCMP witnesses. Chiarelli chose not to do so. At the time, certificates designating foreign nationals as threats to security were subject to a different process from that currently used.
2) The security certificate proceedings could operate like Security Intelligence Review Committee (SIRC) hearings. SIRC was established under Canadian Security Intelligence Service Act
, R.S.C. 1985, c. C-23.
For many years, the usage of SIRC information in relation to deportation hearings on national security grounds was provided under the old Immigration Act
, R.S.C. 1985, c. I-2.
SIRC hearings used independent counsel who liaised with counsel for the person throughout the hearing process and who could challenge the secret evidence in ex parte, in camera proceedings, to ensure that measures taken to protect secrecy minimally impaired the affected party's rights. Counsel would negotiate with CSIS, Canada's spy agency, on disclosure - CSIS would have to justify non-disclosure in each instance.
SIRC used to have responsibility for reviewing ministerial decisions to deport based on national security considerations. Its responsibility in relation to foreign nationals other than permanent residents was removed in 1988. In 2002, with the introduction of the new Immigration and Refugee Protection Act
, SIRC was stripped of this responsibility in relation to permanent residents as well.
3) The amicus curiae model from the Arar Inquiry
has also been brought up. The inquiry is looking into how Maher Arar, a Syrian-born Canadian, was pulled off a plane in New York in 2002 by authorities suspecting him of being somehow connected to Al Qaeda and sent back to Syria where he was tortured for one year.
When the government requests that certain evidence be heard in camera due to security concerns, this independent counsel with national security clearance can examine and test these requests.
4) The idea that has attracted the most attention and discussion, however, is that of the "special advocate" role.
The special advocate concept calls for an independent counsel whose function would be to represent the interests of the affected foreign national in any secret hearing, but who would do so without disclosing any confidential information to the person concerned.
In the United Kingdom, Special Advocates have existed since 1997. A Special Immigration Appeals Commission (SIAC) was created in response to a European Court of Human Rights decision over the UK government's effort to deport a Sikh separatist militant who alleged deportation would expose him to real risk of torture (Chahal v. United Kingdom
 ECHR 54).
The role of the Special Advocate is to act on behalf of a person within a secret hearing process dealing with national security evidence. The rules of the SIAC provide that a Special Advocate can make submissions to the Commission at any hearing where the appellant is excluded, and cross-examine witnesses at these hearings.
In The Secretary of State for the Home Department and M
,  EWCA Civ 324
, the Court of Appeal upheld a judgment of SIAC that a man, known as 'M', had been detained under the Anti-Terrorism, Crime and Security Act 2001
on evidence that was wholly unreliable and should not have been used to justify detention. Detention was under a certificate quite like the Canadian security certificates and was also a step in the process leading to deporting 'M'. The Court refused the Home Secretary leave to appeal. In its judgment, the Court outlined the benefits of having a special advocate where secret evidence is used:
"The involvement of a special advocate is intended to reduce (it cannot wholly eliminate) the unfairness which follows from the fact that an appellant will be unaware at least as to part of the case against him. ... As this appeal illustrates, a special advocate can play an important role in protecting an appellant's interests before SIAC. He can seek further information. He can ensure that evidence before SIAC is tested on behalf of the appellant. He can object to evidence and other information being unnecessarily kept from the appellant. He can make submissions to SIAC as to why the statutory requirements have not been complied with. In other words, he can look after the interests of the appellant, insofar as it is possible for this to be done without informing the appellant of the case against him and without taking direct instructions from the appellant".
In concluding observations, the Lord Justices wrote: "Having read the transcripts, we are impressed by the openness and fairness with which the issues in closed session were dealt with ... We feel the case has additional importance because it does clearly demonstrate that, while the procedures which [the Commission] have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to under-value the SIAC appeal process. ... While the need for society to protect itself against acts of terrorism today is self-evident, it remains of the greatest importance that, in a society which upholds the rule of law, if a person is detained as ‘M’ was detained, that individual should have access to an independent tribunal or court which can adjudicate upon the whether of whether the detention is lawful or not. If it is not lawful, then he has to be released".
As pointed out in this week's hearings here in Ottawa, the special advocate process has been the subject of criticism in the United Kingdom. The Special Advocate is not allowed to communicate with the detainee about the secret evidence, nor receive instructions from the detainee.
In April 2005 a Constitutional Affairs Committee in the United Kingdom reviewed the procedure and recommended changes to make it easier for Special Advocates to communicate with appellants and their legal advisers after they have seen closed material, on a basis which does not compromise national security, so that the Special Advocate is able to form a coherent legal strategy with the appellant's legal team. [House of Commons, Constitutional Affairs Committee, The operation of the Special Immigration Appeals Commission (SIAC) and the use of the Special Advocates
, Seventh Report of Session 2004-2005
The lawyers in Ottawa who were defending the idea also called for allowing communication between a special advocate or an amicus curiae and the appellant.
Other blog posts on the hearings can be found at Slaw.ca:
- Today's Terror Hearing (June 13, 2006) - includes links to a few of the factums of the parties before the Supreme Court
- Terror in the SCC - Day 1 (June 14, 2006) - summarizes many of the questions put to counsel by the Justices on Tuesday and refers to the interest of the SCC bench in the "special advocate" idea
As well, the Canadian Bar Association
has made its factum available online.
Labels: Charter, human rights, immigration, Supreme Court of Canada, terrorism