Independence controversy swirls around new special advocates

posted on March 31, 2008 | in Category Security Certificates | PermaLink

by Cristin Schmitz
Source: The Lawyers Weekly
URL: [link]
Date: March 28, 2008

A longtime military lawyer, and a civil litigator whose major client is the federal Department of Public Works, are among the latest lawyers with links to the government of Canada who have been appointed as independent special advocates for those held under security certificates.

Lieutenant-Colonel Denis Couture of Ashton, Ont., who retired in 2003 after 27 years in the Office of the Judge Advocate General and who continues to work as a lawyer in the Canadian Forces (CF) reserves, and Sylvain Lussier, a Montreal civil litigator who was lead counsel for the federal government at the Gomery Commission of Inquiry into the sponsorship scandal from 2004 to 2006, were among the six new special advocates named by Justice Minister Rob Nicholson March 4.

They join a roster of 13 other security-cleared special advocates appointed Feb. 22 to protect the interests of persons named in security certificates during closed-door judicial reviews of the certificates based on secret government evidence.The appointments of Lussier and Couture will fuel controversy about the perceived independence of the special advocate regime that was ignited last month when Nicholson appointed Ivan Whitehall, the former chief general counsel for the Department of Justice, and Barbara McIsaac, a former senior DOJ litigator who is a partner at McCarthy Tétrault.

Whitehall and McIsaac are respected litigators, but questions were raised whether their professional connections to the federal government impair their perceived independence. In 2005-2006, for example, DOJ records show that McCarthys billed the federal government some $900,000 in connection with McIsaac’s work, supported by other McCarthys lawyers, as senior counsel for the federal government at the Arar Commission of Inquiry.

Couture told The Lawyers Weekly that he won’t, in any event, take on any special advocate work before his planned retirement from the CF by the end of May.

Lussier, now of Montreal’s Osler Hoskin & Harcourt, continues as Ottawa’s legal counsel in Quebec Superior Court litigation and ongoing settlement discussions to recover some $40-million in monies allegedly improperly received by companies under the defunct federal sponsorship program.

Lussier’s previous firm, Desjardins Ducharme of Montreal, billed the government over $1.2 million for work by Lussier and others on the file in 2005 and 2006, according to information obtained under the federal Access to Information Act.

Both Lussier and Couture told The Lawyers Weekly they see themselves as fully independent from the federal government, which is, in Lussier’s case, one of his top clients, and is Couture’s employer.

“If I feel I can’t do it I am not going to do this half-assed,” Lussier said. “The way I see it is that the government selects me to act for these people so they expect me to fight tooth and nail within the bounds of what the law permits to represent these guys, if it ever happens. I am a barrister and I am used to arguing different sides. I wouldn’t handle a file against [the Department of] Public Works because that’s my main client. But... if the federal government was suing one of my clients for environmental offences, [for example], it wouldn’t a problem for me to defend these people.”

While Couture has done prosecutions during his 32 years as a military lawyer, he noted that for the past 18 years he has been doing only defence work at courts martial and appeals. “The work I have done required independence, and I think I have done it reasonably well,” he said. “I was basically taking positions against the rest of the system if you wish. Ethically we owe our duty to the client. The client is the accused person... and we stand up for his rights and we do whatever we see fit for the defence of his rights and that’s that.”

When the DOJ advertised to fill the newly created post of special advocate last December, it stipulated that applicants be “not employed in the federal public administration, and not associated with the federal public administration in a way that would impair the ability to protect the interests of the person named in the certificate.”

University of Ottawa law professor Craig Forcese told The Lawyers Weekly that in order for the new security certificate regime to be credible, and capable of resisting constitutional challenge, special advocates must be – and must be seen to be – independent of the government since the special advocates’ performance will not be open to public scrutiny at the in camera judicial review hearings.

“If I was in the position of one of these [persons subject to security certificates], or their counsel, I would be inclined to steer clear of people who have significant government business just because why risk the prospect that they might be not as zealous in their advocacy on my behalf because of concerns about preserving that government business?” Forcese said. “That would be the bottom line for me, and that might be the way that most of these individuals [under security certificates] are going to think.”

Bill C-3, proclaimed in force last month, contemplates that those subject to security certificates should generally be able to choose their special advocates from the roster of approved security-cleared lawyers. But if fairness demands it, the law would also appear to require the presiding judge to appoint a special advocate even if the named person doesn’t want one.
“If the person who is appointed special advocate [by the court] ends up being a person who is widely perceived as perhaps being in the government corner, that’s going to enhance the credibility of [any court] challenge,” Forcese remarked. “It’s not in the interests of any judge, frankly, to appoint someone as a special advocate who is vulnerable to that sort of criticism, if they want to preserve this system.”

However, the perceived independence of the lawyers who applied to be special advocates was not focused on by the independent committee who vetted the applicants’ credentials and prepared a list of names for consideration by the justice minister, said Andrew MacKay, the retired Federal Court judge who chaired the vetting committee.

“It’s not an issue that we put our minds to in connection with any one individual — the fact that [lawyers] were engaged on behalf of either the persons who were under certificates... or alternatively for the Government of Canada, unless it was an obvious conflict of interest,” MacKay told The Lawyers Weekly.

“If you are asking did we look at each individual and say: ‘Is he independent, what’s he done?... No, we didn’t do that. We did look at each individual and looked at the information we were able to collect about them — most of which came from the individual themselves. And on that basis we made our recommendation.”

The three-person committee had no outside help during the four weeks they vetted the qualifications of about 50 applicants. The first 13 appointments were announced just three weeks after the Feb. 1 deadline for applications. “We had very little time,” MacKay acknowledged.

The exact qualifications for special advocates will be specified by future regulation. But Bill C-3 requires that special advocates “not be employed in the federal public administration, and not otherwise be associated with the federal public administration in such a way as to impair their ability to protect the interests of the permanent resident or foreign national.”
The justice department ad stipulated lawyers would have to have a minimum of 10 years’ good standing at the Bar and significant litigation experience. Experience in immigration law, criminal law, national security law or human rights law was also stated to be desirable.

“That was essentially the framework in which we tried to work,” MacKay said. Asked whether he is satisfied that each lawyer approved by the committee is independent from the government, MacKay responded: “I guess I would say the answer to that is ‘yes’. The fact that one represents a client, or clients, doesn’t discount the possibility of being independent. I mean that’s what a lawyer is.”

But the former judge added “it will be an ongoing argument, I am sure of that.”

Lussier, a respected administrative law counsel, said he doesn’t have experience “per se” in immigration, criminal or national security matters, but said he applied for the special advocate designation “out of a sense of duty... more than anything else” after being invited to do so by MacKay.

Couture said he applied to be a special advocate because those detained under security certificates “need help, so I thought that possibly I might contribute something.”

He emphasized “it’s still unclear to me to what extent I can be involved, or I will be involved.”

Also appointed as special advocates on March 4 were senior Ottawa criminal defence counsel Leonard Shore and criminal defence counsel Jean-Paul Aubry and Heather Perkins-McVey, and Colin Baxter, a McCarthy Tétrault civil litigator in Ottawa who was called to the Bar in 1992.

Of the 19 special advocates thus far appointed, most are seen as having no connections to the government, Forcese emphasized.

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