By Andrew Duffy
Source: The Ottawa Citizen
URL: [link]
Tuesday, February 26, 2008


OTTAWA - Lawyers for four terror suspects, including Ottawa's Mohamed Harkat, have told the Federal Court they want to represent their clients as "special advocates" in secret evidentiary hearings.

Defence lawyers Paul Copeland and John Norris are two of the 13 special advocates who have received top secret security clearance from the federal government. Special advocates were created by the government's new security certificate law, which seeks to improve upon the original version struck down last year by the Supreme Court.

Norris said he has volunteered to take on the role of special advocate out of a sense of duty to his clients, terror suspects Mohammad Mahjoub and Mahmoud Jaballah."Having been through the public hearings with them, we believe these cases will be won or lost in the in-camera hearings," Norris said in an interview. "That is where the real fight is going to happen. We think it's a fight we can win."

The question of who will be named as special advocates for the so-called "secret trial five" emerged as a key issue Tuesday during a day-long case management conference. Such conferences are normally held by telephone, but Tuesday's session was in public at the behest of Chief Justice Allan Lufty, who told lawyers he wanted to move forward with the five cases "expeditiously and fairly."

In a letter to the court, Copeland said he, too, believes the secret hearings will be critical for his clients, Harkat and Hassan Almrei.

"My own view is that I can much more effectively represent their interests in the secret hearings than participate with my hands tied behind my back . . . in the so-called open hearings," he wrote.

When informed that both Copeland and Norris went through a week of training last week as special advocates, Judge Lufty admitted to being surprised they had been approved for top secret clearance so quickly.

"I didn't know that the government could top secret clear someone in two weeks," he said.

If accepted as special advocates in the cases, both lawyers no longer would be able to act as defence counsel for their existing four clients.

Judge Lufty urged federal lawyers to work with Norris and Copeland to come to an agreement on whether it would be appropriate for them to work as special advocates in the four cases.

Under the new legal framework, special advocates will be assigned to each of the five security certificate cases. The advocates will be able to attend in-camera hearings, where evidence is introduced in secret because of national security concerns.

The advocates will be able to help judges examine witnesses and test the strength of the government's evidence. But the advocates will not be allowed to share what they've learned with defence counsel for the accused terrorists - or with anyone else.

There is now a list of 13 approved special advocates. The list includes Lorne Waldman, counsel for Maher Arar, Paul Cavalluzzo, senior commission counsel to the Arar inquiry, Ronald Atkey, a former cabinet minister and onetime chair of the Security Intelligence Review Committee, and Ivan Whitehall, former assistant deputy minister with the Department of Justice.

Federal Court Judge Simon Noel, who also attended Tuesday's case management conference, said he wanted the security certificate hearings completed within six to nine months. But lawyers for the five men suggested a series of issues - including another Supreme Court challenge to the validity of the new law - could put that timeline in jeopardy.

The next case management conference will be held on March 11.

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