New national security law faces first hurdle as government tries to nix lawyers

posted on March 19, 2008 | in Category Security Certificates | PermaLink

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Source: Canadian Press
Date: March 16, 2008

TORONTO — With five suspected Muslim terrorists caught in legal limbo, a freshly minted group of special advocates tasked with testing the government's secret evidence against the men could find themselves stymied by an upcoming secret hearing that raises questions about Canada's revamped national security legislation.

Under the new law, foreigners detained as a security risk can appoint one of the advocates to gain access to the highly classified intelligence about them, although the information would remain off-limits to the accused terrorist and his lawyer.In the cases of lawyers Paul Copeland and John Norris, the government is objecting to their acting as special advocates for three of the accused, several of whom they've represented for years, on conflict-of-interest grounds - but won't say what those grounds are, citing national safety issues.

For Copeland and Norris, who have spent years trying to come to grips with information they weren't allowed to see, the sudden turn came as both a surprise and disappointment.

"These are very important issues relating to fundamental justice and relating to how Canada manages some very important issues," Copeland said.

The chief justice of the Federal Court will now hold secret hearings later this month to decide whether the government's objections are valid, but the two lawyers will be excluded.

While special advocates cease acting directly for their clients, the legislation does state their role is to "protect the interests" of alleged terrorist when it comes to holding up the secret evidence against them to scrutiny.

Martin Rudner, an expert in Ottawa who helped train eight of the new special advocates, said the lawyers would be in a conflict by gaining access to secret information they couldn't then share with their former clients.

"If you know something, you can't unknow it the next moment," Rudner said.

"Nobody anticipated this in terms of drafting the legislation to include a clause which would have either included or excluded certain lawyers."

Part of the problem, Rudner said, might be a misconception that the special advocate is supposed to act directly for the accused terrorist rather than for the court itself.

Toronto activist Matthew Behrens, who has befriended several of the alleged terrorists and their families, said the problems show the revamped law is as flawed as the one the Supreme Court of Canada threw out.

"This was basically legislation that was pushed through by fear and intimidation," Behrens said.

"We're contorting ourselves into these hopeless shapes, and all it's doing is adding to the misery of those who are affected by this process."

Ahmad Jaballah, whose father Mahmoud Jaballah was one of the five men slapped anew with a national security certificate last month when the rewritten law took effect, worries the government's objections to his choice of special advocate will mean already lengthy proceedings will be prolonged even further.

"If you have a special advocate who has no prior knowledge of the cases, you're looking at four to five months alone in prep work," said Jaballah, 21, a student in Toronto who has to help ensure his father's onerous bail compliance.

"The whole idea behind (Norris) being the special advocate is that he already knows the case and the reason we want him to be on the two cases is because they are interlinked on some issues."

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