by Canadian Press
Source: Canadian Press
URL: [link]
Date: September 26, 2006


TORONTO — Gag orders under Canada's revamped security law make it impossible for special lawyers with top-secret clearances to effectively represent foreigners detained as threats to the country's safety, a lawsuit slated to be heard Friday claims.

As a result, the reworked legislation is still unfair to terrorist suspects and needs to be changed or, at the very least clarified, the suit before Federal Court argues.

The constitutional challenge - supported by several special advocates - was filed by suspected Syrian terrorist Hassan Almrei. He has been detained in Toronto without charge or trial for seven years based on secret information.

The law was enacted earlier this year in response to a Supreme Court of Canada condemnation of the old legislation as unfair.

At issue was the secrecy that left detainees, and their lawyers, in the dark regarding the evidence used to detain them as a national security risk.The government argued that revealing sensitive intelligence to the suspects and their lawyers, and essentially the public, would threaten Canada's safety and its ability to obtain information from other spy services.

To address the fairness issue, the new legislation enacted by the Harper government created the position of special advocates who have access to the classified information so they can challenge it in closed court.

At the same time, the law imposes a sweeping muzzle on the security-cleared lawyers that critics charge goes well beyond ensuring that legitimately classified information remains off-limits to the public.

"The prohibition on communication after viewing the sensitive material is total," lawyer Lorne Waldman argues in documents filed in support of the suit.

"The impugned provisions bar communication with any person. This includes not only the interested person and their counsel, but also the special advocate's own office staff and even the support staff designated to assist the special advocates."

Even talking to other special advocates is off-limits.

Government lawyers, however, face no such restrictions.

The upshot, the suit argues, is that special advocates will be hamstrung in their ability do their jobs and that the legislation, designed to create some fairness in the process, is unworkable.

"I have been extremely dismayed by the legislative amendments," Almrei, one of five Muslim men under a national security certificate, states in his court filings.

"This (new secrecy) restriction causes great distress and anxiety for me. If I'm unable to even learn anything of the proceedings, I will be impeded from constructing my defence and having my interests represented."

Special advocate Paul Cavalluzzo calls the new laws a "half-measure" and maintains it will be "extremely difficult" to do the job properly if they can't talk to the suspects.

As lead counsel for the public inquiry into the American rendition of Canadian citizen Maher Arar to torture in Syria, Cavalluzzo had access to sensitive information.

Because it was an inquiry he was still allowed to talk to Arar and others involved the case, a freedom he said was crucial to testing the government's secret evidence without letting on what the intelligence was.

"All of the senior advocates are very experienced senior counsel used to dealing with confidential information all the time," Cavalluzzo, who has filed a supporting affidavit, said in an interview.

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