By Cristin Schmitz
Source: Lawyer's Weekly Magazine
URL: [link]
Date: September 12, 2008


Canada’s revamped security certificate legislation is under Charter attack by the very lawyers the government hoped would ensure the new law’s constitutionality and credibility — the special advocates.

In an ironic twist of events, two court-appointed special advocates have filed affidavits in Federal Court complaining that they will not be able to properly defend the interests of security certificate detainees at upcoming closed-door judicial reviews which will determine whether secret government evidence proves that the detainees are threats to national security.

The special advocates for three of the five men currently held under security certificates, Gordon Cameron of Ottawa’s Blake Cassels & Graydon and Paul Cavalluzzo of Toronto’s Cavalluzzo Hayes, point to what they contend are overly broad gag rules in s. 85 of the Immigration and Refugee Protection Act (IRPA).

The senior counsel say the gags drastically constrain their communications far beyond what is justifiably necessary to protect the confidentiality of sensitive government information.“The IRPA Special Advocate provisions will make it extremely difficult for me to effectively discharge my role,” deposes Cavalluzzo, a special advocate for both Mohamad Harkat and Mahmood Jaballah.

He asserts “the provisions can conceivably prevent me from communicating with my office staff and secretary, with other special advocates, and with Keith Wilkins, designated by the Government of Canada to offer support to the special advocates.”

The blanket non-disclosure provisions were strongly opposed by the Canadian Bar Association prior to the IRPA’s passage last February.

The provisions bar the special advocates — after they receive any confidential information from the government — from communicating with anyone, including the detainees and their counsel, about either the confidential information or “about the proceeding”, unless a judge grants specific authorization.

At least three of the eight senior lawyers who have been court-appointed as special advocates from a roster of 27 eligible barristers say the rules hamstring them. And it is possible, if not likely, that more special advocates will jump on board.

At press time, the Federal Court was set to hear argument as early as this week on a motion filed this summer by Toronto immigration lawyer Lorne Waldman on behalf of his client Hassan Almrei, who is challenging the legality of his security certificate. (Waldman is a special advocate in another immigration case, but not for Almrei).

Almrei’s motion is supported by affidavits from Cameron, one of Almrei’s two special advocates, as well as from Cavalluzzo. (Security certificate detainees Jaballah and Mohamed Mahjoub have also applied to be joined as parties on Almrei’s motion, while Harkat seeks to intervene.)

The Almrei motion asks that ss. 85.4(2) and 85.5(b) be struck down for violating Almrei’s s. 7 Charter guarantee of fundamental justice and the special advocates’ s. 2(b) guarantee of freedom of expression. Alternatively, the motion demands that the law be read down to permit a special advocate to communicate with a detainee and the detainee’s counsel, after the special advocate views the confidential information, without a judge’s prior authorization (the special advocate would keep the information strictly confidential).

“The requirement to seek permission before communicating would force the named person [in the certificate] and the special advocate to reveal strategic issues and considerations that are appropriately left to discussion with the counsel representing the named person’s interests,” says Almrei’s motion.

Moreover, requiring prior court approval will likely also require the special advocates to disclose their interests and concerns to counsel for the minister — which would be unfair to the detainee.

“The current provisions are so broad that... they deny the special advocate the ability to communicate with anyone about the proceedings, which is so broad that on its face it would require the special advocate to get leave of the court before speaking to a Parliamentary committee about the proceedings, or advising his or her office of the timing of a hearing,” argues the motion.

In defence of the law, the government argues the effect of the gag is not that broad. “As long as the special advocate wishes to communicate with the media about the legislative scheme and does not communicate about the confidential information or evidence, or the proceedings, such communication would not come within ambit of prohibition,” says the government’s Aug. 18 rebuttal.

The government argues Parliament reasonably chose to protect the confidentiality not only of the evidence filed at the in camera proceeding, but “also information about that proceeding with the potential to reveal what transpired at the in camera proceeding [such as] the number and nature of witnesses called, with which agencies or sectors the witnesses are affiliated, and a myriad of issues that are not easily enumerated.”

The government disputes Cameron’s and Cavalluzzo’s assertion that the extensive litigation experience of special advocates will enable to them to always steer clear of the risk that they might inadvertently disclose the sensitive, confidential information to the detainee or his or her counsel. “The remedy sought by the applicant represents a fundamental alteration of one of the basic design features of the legislation,” urges the government. “The scheme is in accordance with the Charter as it respects a good balance between the need to protect confidential information and the right of the person to know the case to be met.”

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